A charity argued that the whistleblowing law was incompatible with human rights laws. The Court of Appeal will now consider whether it should extend protections to external job candidates.
Currently, whistleblowing protections do not apply to external job seekers, with the exception of people who apply for NHS jobs under the Employment Rights Act 1996. Other workers are protected, including those doing work experience and agency workers.
Job applicants who report misconduct in other industries risk being blacklisted, and may be effectively excluded from returning to their chosen field.
Protect, a whistleblowing charity, says that blacklisting people who made a protected disclosure happens all too often. Potential employers are turned off by knowing that a candidate reported wrongdoing to a former employer.
Protect has filed a ‘third-party intervention’ at the Court of Appeal for the case of Sullivan v Isle of Wight Council in order to extend whistleblowing protections across all external job candidates.
The case raises important public policy issues.
Miss Sullivan claimed that she was verbally harassed by managers at Isle of Wight Council after she had been invited to two interviews.
She also claimed that a council employee had been involved in the operation a trust that was rife with financial irregularities.
Sullivan’s complaint was dismissed by the employment tribunal in 2022, who determined that the whistleblowing provisions of the ERA 1996 didn’t apply to her because she wasn’t a worker or an employee. This Act does not cover external job seekers. Her appeal has been dismissed last year by the Employment Appeal Tribunal.
Protect’s intervention at the Court of Appeal does not address the facts of the matter or whether Sullivan is entitled to protection against whistleblowing harm in relation to her claim.
Protect’s submissions ask whether external job candidates are protected under whistleblowing laws if they made a protected disclosure – which is to raise an issue of public concern, usually about an employer – during the application process.
‘Effectively blacklisted’
Elizabeth Gardiner is the chief executive of Protect. She said, “Job seekers need whistleblowers protections.” Our legal advice line receives many calls from people who tell us their whistleblowing has not only ended their job but they also fear that they will never be able to work in the sector they chose again.
“There’s nothing that can stop employers from discriminating against those who come forward with concerns during the hiring process. And there’s nothing to protect a candidate who brings up a concern.” It is time to change this. The NHS already protects job applicants, regardless of their role. This includes those working with patients. We hope this case will bring about a change in the law.
Whistleblower protections are needed for job applicants. Our legal advice line receives many calls from people who are concerned that their whistleblowing will not only end their job but also prevent them from working in their sector of choice again. They feel blacklisted.
Anna Birtwistle is a partner at Farrer & Co in the employment law team. She said: “It was a privilege to help Protect pro bono with this third party intervention. It hopes to assist the Court of Appeal in a complex and technical area of the law that has grown considerably since 1996 when the ERA Act was passed.”
Claire Darwin KC of Matrix Chambers represented Protect at the Court of Appeal today. She said: “This case raises significant and complex questions about the scope of protections for whistleblowers under the Employment Rights Act of 1996.” I’m pleased to have been able to help Protect and to contribute to the Court of Appeal’s consideration of important legal issues that have far-reaching consequences for the protection of employees who are whistleblowers.
The legal submissions examine the relationship between Article 14 of European Convention on Human Rights and the ERA 1996 when read with Article 10 ECHR.
The appeal is about whether or not the ERA 1996 should be interpreted in a way that it is compatible with ECHR, and if it’s not, if the ERA 1996 should be construed compatibly, or if the court ought to declare its incompatibility.
Protect’s intervention argues that the ERA 1996 violates the ECHR, because external job applicants (non NHS) can suffer a disadvantage if they disclose protected information during a job interview, or if they are denied a position on the basis that they made a disclosure in the past. This difference in treatment, Protect argues, is not justified.
Last year, former Justice Secretary Sir Robert Buckland along with Baroness Margaret Hodge introduced an amendment of the Employment Rights Bill in order to increase the number of workers who are permitted to make protected disclosures.
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