P Sullivan v Isle of Wight Council

The appeal concerned whether an external job applicant could rely on the whistleblowing detriment protections in Part IVA of the Employment Rights Act 1996 (sections 47B/48) or under the NHS-specific scheme in section 49B and the 2018 NHS Regulations, and whether exclusion of job applicants from Part IVA was incompatible with Articles 10 and 14 ECHR. The Employment Tribunal had found it lacked jurisdiction under the ERA and dismissed the claimant's complaints. On appeal the EAT held that (i) the claimant’s facts could fall within the ambit of Article 10, but (ii) the claimant had not shown she was in an analogous situation to employees/workers or to applicants protected by the NHS Regulations for the purposes of Article 14, and (iii) being an external job applicant does not constitute the kind of "other status" required by Article 14. The Tribunal’s proportionality analysis (the fourth Gilham question) contained an error but it was immaterial because the Tribunal had correctly answered the second and third Gilham questions against the claimant. Finally, a proposed reading‑in to section 43K to include job applicants would not have "gone with the grain" of the ERA and would have required legislative deliberation.

The claimant, an external applicant for two posts with the respondent local authority, brought claims that she had suffered detriments for making protected public interest disclosures. Following a preliminary hearing the Employment Tribunal found it lacked jurisdiction under Part IVA of the Employment Rights Act 1996 (sections 47B/48 and inapplicable section 49B) and dismissed her whistleblowing detriment complaints. The claimant appealed, arguing that the ERA should be read compatibly with Articles 10 and 14 ECHR under section 3 of the Human Rights Act 1998, relying on the Supreme Court’s four-question approach in Gilham v Ministry of Justice.

The appeal raised three principal issues: (i) whether the claimant, as an external job applicant, had been treated less favourably than others in an analogous situation (the second Gilham question); (ii) whether the status of "job applicant" qualified as "other status" under Article 14 (the third Gilham question); and (iii) whether any difference in treatment was justified or proportionate (the fourth Gilham question).

The EAT accepted that the alleged facts could fall within the ambit of Article 10 but upheld the Tribunal’s conclusion on analogous circumstances: an external applicant lacking an existing working relationship with the organisation is not in an analogous situation to employees/workers or to applicants covered by the NHS Regulations. The EAT also held that "external job applicant" is not the kind of characteristic constituting "other status" under Article 14 and, in any event, the detriment relied on had not been suffered qua external applicant. Although the Tribunal’s proportionality analysis was flawed in form, that error did not affect the outcome. The court further observed that any remedy by reading‑in (an amendment to section 43K) would not go with the grain of the ERA and that alternative ways of rendering the statute Convention‑compliant would require legislative deliberation. The appeal was dismissed.

This is an appeal from an Employment Tribunal decision dismissing whistleblowing detriment claims for lack of jurisdiction. The Employment Appeal Tribunal dismissed the appeal. The EAT agreed that the facts could fall within the ambit of Article 10 ECHR but held that (1) the claimant was not in an analogous situation to employees/workers or to applicants protected by the NHS Regulations for the purposes of Article 14, (2) being an external job applicant did not amount to the requisite "other status" under Article 14, and (3) the detriment complained of had not been suffered qua external applicant. Although the Tribunal’s proportionality reasoning was imperfect, that did not change the outcome. A proposed reading‑in to section 43K would not go with the grain of the ERA and would have required parliamentary decision-making.

This is an appeal to the Employment Appeal Tribunal from a reserved Employment Tribunal judgment (Exeter Employment Tribunal, reserved judgment sent 4 January 2022) which found it lacked jurisdiction to hear the claimant's whistleblowing detriment complaints under sections 47B/48 and/or 49B of the Employment Rights Act 1996. The EAT hearing took place on 4 July 2023 and the EAT handed down its judgment ([2024] EAT 3). The appeal raised questions under Articles 10 and 14 ECHR and relied on the four-question Gilham framework.