Employment & Pensions Blog: The definition of "worker" cannot be extended on human rights grounds to cover external job candidates as whistleblowers.

In the recent case of Sullivan v Isle of Wight Council, the Employment Appeal Tribunal held that the definition of ‘"worker" cannot be extended on human rights grounds to cover external job candidates as whistleblowers.

The Facts

The Claimant applied for two financial positions at the Respondent in 2019 as an external applicant. She was unsuccessful in securing either role. In January 2020 she filed a police report, alleging verbal harassment by the Respondent’s employees during the interviews. In February 2020 she complained to the Respondent directly and an internal investigation was instigated. In March 2020 she wrote to her MP and copied in the Respondent to complain about the treatment she received. She also alleged within that letter that one of the Respondent’s employees was involved in the operation of a Trust with financial irregularities. In September 2020 the investigation concluded that there was no evidence of wrongdoing. Given the extent of the investigation carried out, and the impact on the staff involved, the Claimant was not given the right to appeal the findings (despite one being available to her under the Complaints Procedure). In November 2020 the Claimant issued a Tribunal claim against the Respondent for whistleblowing detriment. She claimed that the Respondent’s refusal to allow her a right of appeal was due to the protected disclosure she had made about one of the Respondent’s employees being involved in the Trust. 

The Claimant accepted that she was not a “worker” for the purposes of the Employment Rights Act 1996 (“ERA”), and thus was not entitled to protection for making a public interest disclosure. However, she argued that the whistleblowing provisions (s.47B and s.48 ERA) should be extended to include external applicants pursuant to Article 10 European Convention on Human Rights (Freedom of Expression) and Article 14 (Prohibition of Discrimination) as applied by the Supreme Court in Gilham v Ministry of Justice 2019 ICR 1955. For context, in Gilham, the Supreme Court held that while a District Judge did not fall within the scope of the worker or crown employment provisions of the ERA, this amounted to discrimination against the Claimant in that case in the enjoyment of her rights to freedom of expression and as a “Judicial Office Holder”, was held to fall within the term of “other status” under Article 14.

The Claimant stated that she had the necessary “other status” as a candidate, and so was entitled to be protected from making a public interest disclosure.

The Judgments 

The Tribunal held that it had no jurisdiction to hear the Claimant’s case because as an external applicant, she was not in a similar position to an internal applicant or to an NHS applicant.

The Claimant appealed the Tribunal’s decision, but the Employment Appeal Tribunal (“EAT”) upheld the Tribunal’s decision. The EAT found that since the Claimant was an external candidate, she was not analogous to an internal candidate or to an NHS applicant, as she had not been operating within the Respondent’s workforce. It also concluded that an “external job applicant” was not a relevant employment status under Article 14 of the ECHR and therefore Gilham did not apply. 

Comment 

This case acts as an important reminder that under employment legislation, only workers (or workers under the extended definition) are entitled to bring claims in respect of whistleblowing when they have suffered a detriment because of making a protected disclosure. External job applicants do not have the same protection, unless they fall within the provisions for applicants for positions with certain specified NHS employers, according to the EAT. 

If you have any questions on whistleblowing, or anything arising from this judgment, please get in touch with a member of our Employment Team.