External job applicant not protected from detriment after whistleblowing

In a judgment delivered on 3 April 2025, the Court of Appeal addressed the scope of whistleblowing protections under the Employment Rights Act 1996 (ERA), specifically concerning external job applicants.

The conclusion was that external job applications are not protected from detriment under the whistleblowing provisions of said ERA 1996, outside of specific exceptions such as the NHS.

The case, Sullivan v Isle of Wight Council, will provide clarity and reassurance for employers regarding the treatment of applicants who have made protected disclosures.

Background to the Sullivan v Isle of Wight Council case

Ms. Phyllis Sullivan applied for two financial positions with the Isle of Wight Council in 2019 but was unsuccessful in both applications. Following these rejections, she raised concerns alleging:

• Misconduct during the interview processes
• Financial irregularities involving a charitable trust linked to one of the interviewers

Ms. Sullivan contended that these disclosures amounted to protected whistleblowing activities and claimed that the Council’s refusal to grant her an appeal under its complaints procedure was a detriment resulting from her whistleblowing.

Legal Proceedings: Tribunal and Appeal

Initially, the Employment Tribunal dismissed Ms. Sullivan’s claims, concluding that, as an external job applicant, she did not qualify for whistleblowing protections under the ERA. This decision was upheld by the Employment Appeal Tribunal (EAT) in January 2024, which found that the ERA’s protections did not extend to external applicants outside the NHS context.

Ms. Sullivan appealed to the Court of Appeal, arguing that the exclusion of external job applicants from whistleblowing protections was incompatible with Article 10 and Article 14 of the European Convention on Human Rights (ECHR), which address freedom of expression (including whistleblowing) and the prohibition of discrimination, respectively.

Court of Appeal Judgment

The Court of Appeal dismissed Ms. Sullivan’s appeal, affirming that the ERA does not extend whistleblowing protections to external job applicants, except in specific contexts such as the NHS. The Court held that:

• External job applicants are not in a materially similar position to employees or workers who are afforded whistleblowing protections under the ERA. The existing employment relationship provides a context that is absent in external applications.
• The differential treatment between external job applicants and employees or workers is objectively justified. The legislation aims to balance the protection of whistleblowers with the need to manage the scope of such protections appropriately. Extending these protections to all external applicants could have significant and unintended consequences for employers.
• While acknowledging the importance of Articles 10 and 14 of the ECHR, the Court found that the current legislative framework of the ERA is compatible with these provisions. The exclusion of external job applicants from whistleblowing protections does not constitute unlawful discrimination under the ECHR.

The scope of whistleblowing protections: Key takeaways for employers

This judgment provides clarity for employers regarding the scope of whistleblowing protections:

1. Employers should be aware that, under the current legal framework, external job applicants (outside specific sectors like the NHS) are not entitled to whistleblowing protections. This distinction is crucial when handling disclosures made during recruitment processes.
2. While external applicants may not have whistleblowing protections under the ERA, employers should still strive to maintain fair and transparent recruitment practices. Addressing concerns raised by applicants professionally and thoroughly can help mitigate potential reputational risks.
3. Employers operating within sectors that have extended whistleblowing protections to applicants, such as the NHS, must ensure compliance with these specific regulations and understand that the general exclusion does not apply in these contexts.

Comment

This decision underscores the current boundaries of whistleblowing protections within UK employment law. Employers should remain vigilant in their recruitment practices, ensuring that all applicants are treated fairly and that any disclosures are handled appropriately, even if the statutory protections do not extend to external candidates. Staying informed about potential legislative changes in this area is also advisable, as the landscape of employment protections continues to evolve.