Job applicants remain unprotected as whistleblowers

The Court of Appeal has delivered a significant ruling, determining that job applicants do not enjoy the protections afforded by whistleblowing laws. In a case involving Sullivan v Isle of Wight Council, the whistleblowing charity Protect intervened to advocate for the extension of whistleblowing protections to all external job applicants. Under current legislation, specifically the Employment Rights Act 1996 ("ERA 1996"), only job applicants within the NHS receive specific protections when making a protected disclosure. In contrast, individuals in other sectors risk blacklisting if they disclose wrongdoing, potentially hindering their career prospects.

The charity Protect emphasised the importance of their intervention in this case as it touches upon critical public policy issues. They were granted permission to participate but chose not to argue the specifics of the case. Instead, Protect aimed to clarify a complex legal area that has evolved since the Public Interest Disclosure Act was enacted in 1998.

The Court's ruling emphasises that while job applicants lack whistleblowing protections, the intent of Part IVA of the ERA 1996 pertains to safeguarding public interests by allowing disclosures related to wrongdoing or threats to health and safety. Elizabeth Gardiner, Chief Executive of Protect, expressed her disappointment with the ruling, stating that “Job applicants who blew the whistle in a former role will have no remedy if a new employer refuses their application simply because they raised concerns in the past.” Gardiner continued, remarking that “whistleblowing still comes with a huge personal cost” and highlighted a troubling disparity in protections that exists between NHS applicants and those in other sectors. She urged Parliament to seize the opportunity to amend the Employment Rights Bill to extend protections for whistleblowers to job applicants.

Additionally, Anna Birtwistle, a Partner in the Employment Team at Farrer & Co, noted the significance of the judgment. She commented, stating that “a job applicant is capable of falling under ‘some other status’ under Article 14 of the European Convention of Human Rights.” Birtwistle underscored the Court's acknowledgment of the whistleblowing provisions within the ERA, affirming their purpose in protecting public interests.

Protect's intervention in the case was made possible through the pro bono efforts of barristers and the legal team from Farrer & Co, who provided crucial assistance. The ongoing lack of protection for job applicants who blow the whistle raises concerns about fairness and transparency in hiring practices across various industries, reinforcing the call for reform in whistleblowing laws.