Key takeaways
Court confirms limited whistleblower protection
External applicants outside the NHS are excluded.
Human rights challenge dismissed by court
Exclusion was justified and not discriminatory.
Public complaints not covered by law
Disclosure as a citizen doesn’t trigger protection.
Workers are granted legal protection, subject to conditions, when they engage in whistleblowing (i.e. make a protected disclosure in the public interest about specified forms of wrongdoing). This whistleblower protection does not generally extend to external job applicants (save for NHS job applicants, to whom specific legislation applies). The Court of Appeal has recently considered whether excluding job applicants in this way was incompatible with their human rights under article 10 (right to freedom of expression) and article 14 (prohibition against discrimination) of the European Convention on Human Rights.
The claimant, S, had unsuccessfully applied for various local authority vacancies. A few months later, S made various reports of wrongdoing (including fraud and assault), initially to the police and the local authority, and later by letter to her MP and the local authority’s Chief Executive. These complaints were investigated and no wrongdoing was found. S later brought a whistleblowing claim, on the basis that the letter amounted to a protected disclosure. The employment tribunal held that it did not have jurisdiction to hear S’s claim because she was not a ‘worker’. The EAT dismissed S’s appeal and held that the tribunal had been entitled to dismiss her whistleblowing claim.
Dismissing S’s appeal, the Court of Appeal firstly held that the tribunal had not erred. S’s position was not materially analogous to ‘workers’ or to ‘NHS job applicants’ (to whom specific whistleblowing protections apply). Further, any difference in treatment between ‘workers’ and ‘NHS job applicants’ (who benefit from protection), and external job applicants for non-NHS employers (who do not benefit from protection), was objectively justified and did not infringe their human rights. The whistleblowing legislation, which focusses solely on ‘workers’ and ‘NHS job applicants’, does not protect ‘job applicants’. It aims to protect the public interest by ensuring the protection of those making whistleblowing disclosures about wrongdoing. Alternatively, the detriment S sought to rely on, did not relate to her status as a job applicant; it was a complaint made in S’s status as a member of the public.
