Key Legal framework: Whistleblowing under Employment Rights Act 1996 (‘ERA 1996’)
Whistleblowing is when a worker makes a disclosure or provides information to their employers or other prescribed bodies relating to any wrongdoing in the workplace that affects others. This is also referred to as the employee making a protected disclosure or “blowing the whistle”.
The disclosure must relate to certain types of wrongdoing that the worker reasonably believes has taken, is taking or is likely to take place as follows:
- a criminal offence
- breach of any legal obligation by an organisation
- a miscarriage of justice
- someone’s health and safety being in danger
- damage to the environment
- concealment of any of the above wrongdoing
The worker must reasonably believe that the wrongdoing is taking, has taken or is likely to take place, and that the disclosure is in the public interest.
The Employment Rights Act 1996 (‘ERA 1996’) protects whistleblowers from detriment and dismissal because they made a protected disclosure. Protection from detriment for blowing the whistle extends to all workers. In the case of the NHS only, it also extends to job applicants.
Case overview
Ms Sullivan applied for two different positions at the Isle of Wight Council (the ‘Council’) and attended interviews in October and December 2019. She was unsuccessful for both roles. In January 2020, Ms Sullivan filed an online crime report, alleging she was subjected to verbal assault and specifically that she was referred to as mentally insane during the interview process. She further alleged that a charitable trust was registered as a dormant company which had been taking revenue from visitors and that the manager who took part in both interview panels for the Council was a trustee of that charity.
Ms Sullivan also contacted the Council’s confidential safeguarding helpline, the Council’s Chief Executive, the Care Quality Commission and her MP in relation to such allegations. The Council conducted an investigation under its internal procedures. The investigation found no evidence of wrongdoing from Council staff, and Ms Sullivan’s complaint was not upheld. Ordinarily there was a right of appeal under the Council’s complaints procedure, but in the case of Ms Sullivan’s complaint the Council concluded this was not appropriate due to the extent of the investigation and the impact on the staff involved.
Ms Sullivan asserted that her letter to her MP which included an allegation that the manager who allegedly sat on the charitable trust, committed fraud and/or breached his legal obligations due to the alleged financial irregularities in the operation of the trust, amounted to a protected disclosure.
Employment Tribunal decision: Claim dismissed
Ms Sullivan issued an Employment Tribunal claim against the Council on the basis that the refusal of a right of appeal amounted to a detriment because she made a protected disclosure. Ms Sullivan further alleged that the protected disclosures were the reason her job application was unsuccessful.
Before the claim could progress the tribunal needed to decide whether Ms Sullivan had the necessary status to qualify for whistleblowing protection noting that she was neither a worker or an NHS job applicant.
Ms Sullivan asserted that the ERA 1996 was incompatible with Article 10 ECHR (the right to freedom of expression) and Article 14 ECHR (the prohibition of discrimination). Ms Sullivan attempted to rely on the case of Gilham v Ministry of Justice [2019] where the Supreme Court established that Article 10 and 14 ECHR extended whistleblower protection to a District Judge who was an officer holder rather than a worker.
The tribunal concluded that Ms Sullivan’s job applicant status was not comparable to that of an existing worker or employee and that she was not entitled to whistleblowing protection under the ECHR. The tribunal was also not satisfied that a job applicant consisted of some other status in accordance with Article 14 ECHR.
Employment Appeal Tribunal ‘EAT’ decision: Appeal dismissed
Ms Sullivan appealed to EAT on the basis that an external job applicant was comparable to workers and/or NHS job applicants.
The EAT dismissed the appeal and upheld the tribunal’s decision, making the following findings:
- Ms Sullivan was not in a materially analogous position to a worker or an applicant for an NHS position. It was also established that being a job applicant was not a status for the purposes of Article 14 ECHR.
- Ms Sullivan’s status when applying for the financial role with the Council was not analogous to NHS job applicants who have extended whistleblowing protection for the purposes of patient safety considerations.
- The appeal failed for a different reason as the complaint did not address any alleged detriment suffered in relation to being a job applicant. Instead, the complaint concerned alleged financial irregularities as a charity unrelated to the Council.
Court of Appeal (‘CoA’) decision: Appeal dismissed
Ms Sullivan appealed to the CoA.
Ms Sullivan argued that the interpretation of the ERA 1996 was not compatible with Article 14 ECHR read with Article 10 ECHR because it does not protect external job applicants unless one applies for a position at the NHS.
Even though the CoA considered that external applicants are somewhat capable of being considered as “other status” with the meaning of Article 14 ECHR, the court held Ms Sullivan was not in a materially analogous or similar position with the two groups she sought to compare herself to. It is important to note that for those who work in the NHS, whistleblowing was extended to cover this category due to the urgent concerns to safeguard patient safety and ensure those who disclosed information relevant to any issues within the NHS, were not disadvantaged in the NHS recruitment process. Therefore, Ms Sullivan could not compare herself to an NHS job applicant as this does not apply to job applicants in other sectors.
The CoA further held that the EAT made the correct decision in that the alleged detriment did not relate to Ms Sullivan’s job application. Ms Sullivan’s claim was that she suffered a detriment as she was unable to take her complaint further because of a protected disclosure she made about alleged financial irregularities at a charitable trust. It is noted her complaint was actually made as a member of the public rather than a claim of being subjected to a detriment as a job applicant or in any way connected with ‘supposed’ employment with the Council.
Key takeaways
This case highlights that cases dealing with protected disclosures are case specific and should therefore be assessed on a case-by-case basis.
Employers in the education sector should be aware that the CoA’s decision emphasises the importance that job applicants do not have the same protection as workers or NHS job applicants under the ERA 1996. In comparison to the law on discrimination, it is noted that job applicants are in fact protected against discrimination under the Equality Act 2010. If Ms Sullivan argued discrimination instead of whistleblowing as a reason for the Council’s refusal to appeal under the complaints procedure, it is possible the situation could have been different.
This case also indicates that there is a clear gap in current whistleblowing protections. Protect, the UK’s leading whistleblowing charity, was an intervener in the CoA appeal and maintains the position that job applicants should have the same whistleblowing protections as workers and NHS jobs applicants. Protect’s Chief Executive, Elizabeth Gardiner explained that she was disappointed with the outcome and that job applicants who blew the whistle in a former role will have no remedy if a new employer refuses their application because they raised concerns in the past. Ms Gardiner notes that Parliament has the opportunity to extend the whistleblowing protections to job applicants in the Employment Rights Bill. At this stage, the Employment Rights Bill does not provide such extensions but there could be calls to the government to do so.
For advice on any of the issues discussed in this case update, or any other employment or HR related matter for schools, please contact Winckworth Sherwood’s dedicated Schools HR helpdesk on SchoolsHR@wslaw.co.uk or 0345 026 8690