P Sullivan v Isle of Wight Council

An external job applicant is not, without more, in an analogous situation to an existing worker for the purposes of Article 14 read with Article 10 of the ECHR. The worker’s protection derives from an existing workplace relationship, not from being an internal applicant.

Nor does the fact of having applied externally for a job constitute an other status under Article 14. A claimant must also have suffered the alleged less favourable treatment in that capacity. Although proportionality requires a structured assessment, an error on that issue is immaterial where the earlier Article 14 requirements fail. A Convention-compatible interpretation under section 3 cannot rewrite a statutory scheme contrary to its grain or require legislative choices.

The Claimant had unsuccessfully applied for two financial roles with the local authority. After making allegations concerning the interviews and alleged financial irregularities connected with a charitable trust, she was denied a further review under the Council’s complaints procedure.

She brought whistleblowing detriment complaints under the Employment Rights Act 1996. The Exeter Employment Tribunal, by a reserved judgment sent on 4 January 2022, held that it lacked jurisdiction because she was an external applicant rather than a worker. It rejected her contention that Articles 10 and 14 of the ECHR required an extended reading of the legislation.

Her appeal challenged the Tribunal’s conclusions on analogous circumstances, other status, and justification under the four questions stated in Gilham.

1. Appeal dismissed. Grounds one and two failed. Ground three succeeded only insofar as the Tribunal had erred in its approach to proportionality; that error could not affect the result.

2. Applying the four questions in Gilham v Ministry of Justice [2019] UKSC 44, the EAT accepted that the facts, taken at their highest, fell within the ambit of Article 10. The Claimant nevertheless failed at the second question. An external applicant was not in a situation analogous to an internal applicant who was already embedded in the workplace. The latter’s statutory protection derived from worker status in an existing role, rather than internal applicant status.

3. An external applicant outside the NHS was also not analogous to an applicant protected by the NHS recruitment regime. That regime reflected the particular concerns of patient safety and an evidence-based legislative choice. The Claimant’s own application process had ended months before her disclosure. Her disclosure concerned matters unconnected with the application or the Council, and the alleged detriment arose under a complaints procedure open to the public.

4. The third question also failed. External job applicant was defined by the act of making an application, rather than an acquired personal status or occupational classification independent of that act. It was therefore not an other status for Article 14. Further, under Tiplady, any less favourable treatment had to be suffered qua external applicant; it had not been.

5. The Tribunal had been entitled to identify legitimate aims from the legislative scheme and to defer to Parliament’s evidence-based decision to make limited extensions of protection. It had, however, approached proportionality without evidence and without the structured analysis required by Bank Mellat. Had the earlier questions been answered differently, that issue would have required remission.

6. In any event, the proposed reading into section 43K of the Employment Rights Act 1996 would not have gone with the grain of the legislation. It would have displaced a deliberate statutory exclusion and involved choices requiring legislative deliberation.

• Employment Appeal Tribunal: dismissed the appeal from the Tribunal’s jurisdictional decision: [2024] EAT 3.
• Exeter Employment Tribunal: by a reserved judgment sent on 4 January 2022, held that it lacked jurisdiction over the Claimant’s whistleblowing detriment complaints and dismissed them.