Whistleblower protections cannot extend to external job applicants

In a recent decision about a whistleblowing claim brought by an external job applicant, the EAT has upheld the original employment tribunal finding that it did not have jurisdiction to hear any such claim.

Miss Sullivan had originally lodged claims that, as an unsuccessful job applicant for two roles at the Council in 2019, she had been subjected to detriments on the basis that she had made protected public interest disclosures in 2020 and that definition of “worker” in the legislation should be read as extending to people in her situation.

In January 2020, Ms Sullivan filed a police report, which included an allegation that a Council employee had referred to her as “mentally insane” during the interview process. Ms Sullivan also claimed that there was a charitable trust that had been registered as a dormant company on Companies House, but which had been receiving revenue from visitors. Ms Sullivan then raised these allegations with the Council’s Chief Executive; the Council’s safeguarding helpline; her local MP; and the Care Quality Commission. In contacting her MP (via letter) Ms Sullivan stated that a manager who had interviewed her had been on the interview panels for the roles she applied for in 2019, and asserted that he had been engaged in fraudulent activity and/or had breached legal obligations in regard to the alleged financial irregularities.

The Council reviewed her complaint under its complaints procedure and its disciplinary procedure (in light of the allegations against Council staff), and concluded that there was no evidence of improper conduct by Council staff. Due to the impact on the staff named, and the extent of the investigation carried out, the Council decided to not allow a right of appeal. The failure to allow the appeal was the detriment relied on by Ms Sullivan in lodging an employment tribunal claim, and she claimed that the financial irregularities allegation (included in her MP letter), constituted a protected disclosure.

The EAT dismissed the appeal, and agreed with the tribunal that an external job applicant was not in an analogous situation to that of an internal application from an employee who is already integrated into the workplace. This was on the basis that an internal job applicant does not derive whistleblower protection from their job application, but rather from their existing worker status. The exception is that NHS external applicants can derive whistleblower protection from their job applications - but this is a specific legal carve-out that relates to patient safety.

This decision underlines the fact that the extension of whistleblowing protection to external job applicants generally is a matter for Parliament, rather than judicial interpretation of the legislation in its current form.