Whistleblowing and job applicants

According to the Oxford English Dictionary,  ‘whistleblowing’ means bringing ‘an activity to a sharp conclusion, as if by the blast of a whistle; now usually by informing on (a person) or exposing (an irregularity or crime)’. 

In legal terms whistleblowing refers to a ‘protected disclosure’, namely one qualifying for protection under section 43A and 43B within Part IVA of the Employment Rights Act 1996 (ERA) (a ‘qualifying disclosure’). This means one which in the reasonable belief of the worker making the disclosure is made in the public interest and indicates one or more of the matters listed in section 43B(1)(a)-(f). These include criminal offences or failure to comply with any legal obligation. ‘Worker’ is defined in section 230(3) of the ERA as (among other things) an individual who has entered into or works under an employment contract or any other express or implied contract. Job applicants are not therefore ‘workers’ unless (per section 49B of the ERA) they are applying to an NHS employer. For regulation 3 of the Employment Rights Act 1996 (NHS Recruitment – Protected Disclosure) Regulations 2018 S.I. 2018 No. 579 (the NHS regulations) provides that: ‘An NHS employer must not discriminate against an applicant because it appears to the NHS employer that the applicant has made a protected disclosure.’

But (on a proper interpretative reading of these provisions under articles 10 (freedom of expression) and 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR)), do local authority job applicants currently benefit from protected disclosures in Part IVA of the ERA? No, decided Mrs Justice Ellenbogen in the Employment Appeal Tribunal (EAT) on 22 January in Sullivan v Isle of Wight Council [2024] EAT 3.

Following two unsuccessful applications for positions with the council, the claimant had raised employment tribunal (ET) claims for discrimination, victimisation and whistleblowing in relation (among other things) to: (i) the refusal of an appeal against her unsuccessful complaint concerning the behaviour of her council interview panel members; and (ii) her whistleblowing about alleged financial irregularities in an external charitable trust allegedly involving one of her interview team members and which she had reported to the police. The claimant asserted that she had suffered a detriment caused by the council since she was being perceived as likely to ‘blow the whistle’ and/or actually had ‘blown the whistle’.  

In Gilham v Ministry of Justice [2020] 1 All ER 1 (on whether failure to extend the protection of Part IV of the ERA to a district judge violated her articles 10 and 14 rights), Lady Hale indicated that the issue raised four well-known questions, namely: ‘(i) do the facts fall within the ambit of one of the convention rights; (ii) has the applicant been treated less favourably than others in an analogous situation; (iii) is the reason for that less favourable treatment one of the listed grounds or some “other status”; and (iv) is that difference without reasonable justification – put the other way round, is it a proportionate means of achieving a legitimate aim?’

In the instant case, the ET determined that, following Gilham, it lacked jurisdiction to consider the complaints made. The claimant appealed to the EAT contending (among other things) that the ET had erred in law in considering whether the claimant job applicant had been treated less favourably than others in an analogous situation under Article 14 ECHR and in failing to find that the claimant had ‘some other status’ under Article 14.

By section 3(1) of the Human Rights Act 1998 (HRA), so far as possible legislation must be read and effected compatibly with convention rights. However, in paragraph 121 of Ghaidan v Godin-Mendoza [2004] UKHL 30 Lord Rodger said that: ‘If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with convention rights, it is simply performing the duty which parliament has imposed on it and on others. It is reading the legislation in a way that draws out the full implications of its terms and of the convention rights. And, by its very nature, an implication will go with the grain of the legislation. By contrast, using a convention right to read in words that are inconsistent with the scheme of the legislation or with its essential principles as disclosed by its provisions does not involve any form of interpretation, by implication or otherwise. It falls on the wrong side of the boundary between interpretation and amendment of the statute.’

The EAT noted that in introducing the job applicant exemption in the NHS Regulations, Baroness Manzoor had said that ‘the whole point from the government’s perspective is that we need to ensure that the culture within the NHS is changed so that those people who want to highlight poor practice in the NHS, who are concerned about patient safety, have the right to speak up. It is very important that their rights are protected’. Similarly, section 49C of the ERA, not yet in force, makes analogous provision for regulations in relation to a children’s social care position.  

But while the claimant had sought an amendment addition to section 43K of the ERA to comply with her contentions on convention rights, having regard to material dicta in Ghaidan, the EAT concluded that this would not have gone with the grain of the ERA, and would be a matter for parliament and not the courts. In the circumstances the appeal was dismissed.

Nicholas Dobson writes on local government, public law and governance