Can the definition of ‘worker’ be extended on human rights grounds to cover external job candidates as whistleblowers?
No, held the EAT in Sullivan v Isle of Wight Council.
The Claimant applied, unsuccessfully, for work at the Respondent. She then brought a tribunal claim for detriments for making protected disclosures, although the law covers only actual or former ‘workers’. She brought a whistle-blowing claim citing Article 10 European Convention on Human Rights (freedom of expression) and that she had the necessary ‘other status’ under Article 14 ECHR as a ‘candidate’, so was entitled to protection from discrimination, analogous to judicial office holders in Gilham v MoJ (judge as whistle-blower).
The tribunal dismissed the claim, finding it had no jurisdiction. The EAT upheld that decision, considering three grounds of appeal, looking at how the tribunal had approached the four questions in Gilham. As an external candidate, the Claimant was not analogous to a whistleblowing internal candidate, she had not been operating within the workplace. As a whistleblower, she was not comparable to an NHS external job candidate protected by specific regulations under s49B Employment Rights Act
The status of ‘external job applicant’ is not enough to trigger discrimination protection as an ‘other group’ under Article 14 ECHR. The EAT partially upheld one ground of appeal on the approach to proportionality, but the outcome was unchanged. Finally, the EAT could not read into s43K ERA words extend whistleblowing legislation to candidates, that would ‘go against the grain’ of the legislation, and the clear decision to leave job candidates outside whistleblowing protection. The EAT noted if that were necessary, there was more than one way to do that, so it was a matter for Parliament.
Thanks to Ed McFarlane for preparing this case summary.