The EAT dismissed the appeal holding that the ET had been right to conclude that the Claimant had not been treated less favourably than others in an analogous situation and that external job applicant did not constitute ‘some other status’ for the purposes of Article 14.

Ms Sullivan had applied for two different financial positions with the council in 2019. She was unsuccessful in securing either position. 

In 2020, Ms Sullivan filed an online crime report to the Police alleging, among other things, that an employee of the council had referred to her as ‘mentally insane’ during an interview process. She also alleged that a charitable trust, which she stated was a dormant company, had been taking revenue from visitors and that the manager who sat on both interview panels for the council was a trustee of that charity. Ms Sullivan also contacted the council’s confidential safeguarding helpline, the council’s chief executive, the Care Quality Commission and her MP.

The council carried out an investigation into Miss Sullivan’s allegations under its internal disciplinary procedure. The investigation found no evidence of any wrongdoing on the part of council staff and Miss Sullivan’s complaint was not upheld. The council concluded that the usual right of appeal under their complaint procedure was not appropriate given the extent of the investigation and the impact it had on the staff involved.

Miss Sullivan alleged that her letter to her MP, which raised allegations against the council manager who allegedly had a role at the charitable trust had committed fraud and/or breached his legal obligations due to alleged financial irregularities in the operation of the trust, amounted to a protected disclosure.

The Claimant filed whistleblowing complaints with the Employment Tribunal. The Tribunal determined that the provisions of the ERA 1996 did not provide protection to job applicants and that the Respondent was not a designated NHS Employer/NHS Public body.

The Claimant appealed to the EAT. The Claimant’s representative submitted that the Tribunal’s findings were in contravention of her rights under Articles 10 and 14 of the ECHR. The Claimant submitted that the objective of the ERA was to afford protection to whistleblowers in the workplace sphere or environment and extending protection to job applicants would be consistent with that objective. 

The ET and EAT relied upon the Supreme Court judgement in Gilham v Ministry of Justice [2019] UKSC 44 and the four questions identified therein i.e,

1.    Do the facts fall within the ambit of one of the convention rights, 
2.    Has the claimant been treated less favourably than others in an analogous situation, 
3.    Is the reason for that less favourable treatment one of the listed grounds (in Article 14) or other status,
4.    is that difference without reasonable justification. 

The EAT held that the facts involved fell within the ambit of the right to freedom of expression protected by Article 10 ECHR. However, the Claimant was not in a situation analogous to that of the internal applicant, who is already embedded in the workplace, entitlement to statutory protection derives from his or her status as a worker in the existing role. The external applicant in a sector other than NHS is not in circumstances analogous to one in the latter sector. The analogy was not established whether in general or having regard to the circumstances of this particular Claimant. The ‘other status’ upon which the Claimant relied did not suffice for the purposes of Article 14 ECHR. As to the fourth Gilham question, it was clear from Parliamentary debates that the question of whether to extend the protection of Part IVA of the ERA to applicants outside the NHS was specifically considered.

The EAT dismissed the appeal holding that the ET had been right to conclude that the Claimant had not been treated less favourably than others in an analogous situation and that external job applicant did not constitute ‘some other status’ for the purposes of Article 14. Whilst, when considering the issue of justification (question four), the ET had erred in its approach to proportionality, that error had been of no material effect, having regard to its answers to the second and third Gilham questions. In any event, the Claimant’s proposed amendment to section 43K of the ERA, with a view to rendering the statute Convention-compliant, would not have ‘gone with the grain’ of the legislation and, had the position been otherwise, the nature of any required amendment would have called for legislative deliberation. 
The appeal was dismissed. 

The case was heard by the Court of Appeal in February 2025. We are awaiting the judgment.

You can read the case in full here.