| In a recent case called Sullivan v Isle of Wight Council the Claimant had applied unsuccessfully for a job with the Respondent. She had raised matters which could have amounted to protected disclosures under whistleblowing legislation. She sought to claim she had suffered a detriment on the grounds of whistleblowing. Whistleblowing protection only applies to employees, former employees, workers and former workers. The Claimant was an external candidate.
The Court of Appeal dismissed the Claimant’s claim. It held that external job applicants did NOT have whistleblower protection. In particular, the Court decided that: 1.The Claimant, as an external job applicant, was not in a materially analogous position to either ‘workers’ or NHS job applicants (both of whom have protection against whistleblowing detriment). 2.External job applicants could belong to an ‘other status’, bringing them within the remit of Article 14 of the European Convention on Human Rights (ECHR). Article 14 protects individuals from discrimination on listed grounds and also if they belong to an ‘other status’ category. Judges had successfully argued in a different case called Gilham v MOJ that they were an ‘other status’ who had been discriminated against by not falling within whistleblowing protection and that the legislation should be interpreted to include them so that their right to freedom of expression (Article 10) was protected. However, unlike in Gilham, the difference in treatment between workers and applicants for posts with NHS employers (who both have whistleblower protection) and internal applicants for other jobs (who do not) was held to be objectively justified such that no ECHR rights had been infringed. The legislation pursued a legitimate aim. The measures adopted to achieve that legislative objective were rationally connected with it and the means used were no more than necessary to achieve that aim. |
