Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Summary Description:
Tribunal had no jurisdiction to hear a claim of detriment relating to a protected disclosure where the individual was an external job applicant because they did not have worker status.
Background:
The claimant had two interviews with the respondent for two positions. She was an external candidate. She was unsuccessful in the applications and she then filed a police report alleging harassment by the respondent’s employees during her interviews. She also made this allegation to the respondent.
The respondent conducted an investigation. A month later the claimant contacted her local MP to complain about the interviews but also alleged that one of the respondent’s employees was involved in financial irregularities. The respondent concluded that there was no wrongdoing.
The claimant brought a claim citing that she had suffered a detriment as a result of the protected disclosure citing that she was not afforded an internal appeal to the decision that there was no wrongdoing.
Outcome:
The Tribunal, at first instance, held that it did not have jurisdiction to hear the claim. The reason for this was that she was an external applicant and was not a worker under the Employment Rights Act and how it applies vis-à-vis protected disclosures. The claimant made arguments in relation to her rights under Article 10 of the ECHR (freedom of expression) in conjunction with the right not to be discriminated against under Article 14. This was also dismissed citing that being an external job applicant was not a relevant characteristic under Article 14.
The EAT dismissed the claimant’s appeal. The EAT stated there was a clear distinction between an external applicant and an internal applicant. The internal applicant would have an existing working relationship with the employer and they would receive their protection by being a job holder rather than as an applicant to a role. Additionally, under Article 14 the EAT held that an external job applicant did not amount to other status as it was not of the same quality as an occupational classification.
Practical Guidance for Employers:
This case demonstrates that there is no specific protection for external job applicants in comparison to internal job applicants. This was first in relation to protected disclosures and secondly in relation to the rights that may arise under the European Convention on Human Rights. This can be taken into account by employers should there be issues raised by job applicants about the process and the potential effect it could have.
The full case can be viewed here:
https://www.gov.uk/employment-appeal-tribunal-decisions/miss-p-sullivan-v-isle-of-wight-council-2024-eat-3
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