Phyllis Sullivan v Isle of Wight Council

The Court of Appeal dismissed the appellant's challenge under Article 14 read with Article 10 ECHR to provisions of the Employment Rights Act 1996 (as amended) which protect workers and, by regulation, applicants to NHS employers who make protected disclosures but do not protect job applicants more generally. The court held that (i) an external job applicant is not in a materially analogous position to a worker or to an applicant for an NHS post for the purposes of Article 14, having regard to the aims of the legislation; (ii) even if being a job applicant could amount to an "other status" under Article 14, Parliament had legitimately and proportionately limited protection to workers and to NHS applicants in order to address recognised public‑interest and patient‑safety concerns; and (iii) the Employment Rights Act provisions and the secondary regulations are therefore objectively justifiable. The court also affirmed that the particular detriment relied upon (refusal of a stage 2 review) related to complaints about alleged financial irregularities at a charity and was not a detriment suffered qua job applicant.

Background and parties: The appellant applied unsuccessfully for two posts with the Isle of Wight Council, later made disclosures to her Member of Parliament and to the council about interview conduct and alleged financial irregularities relating to a charity. The council investigated and did not uphold her complaints; it also declined to permit a further stage 2 review in the exceptional circumstances of the case. The appellant, not being a worker and not applying to an NHS employer, alleged she suffered a detriment for making a protected disclosure and that the statutory scheme in the Employment Rights Act 1996 ("ERA"), as amended and as implemented by regulations, was incompatible with Article 14 read with Article 10 ECHR.

Procedural posture: The claim was dismissed by the employment tribunal. On appeal the Employment Appeal Tribunal dismissed the appeal ([2024] EAT 3), and the appellant then appealed to the Court of Appeal.

Nature of the claim / relief sought: The appellant sought a declaration that ERA should be read to protect job applicants generally or, alternatively, a declaration of incompatibility with Article 14 read with Article 10 ECHR. She also sought remedy for the detriment of being denied a stage 2 review of her complaint.

Issues framed by the court:

• whether the appellant, as an external job applicant, was in a materially analogous position to (a) workers, or (b) applicants for posts with NHS employers;
• whether being a job applicant constitutes an "other status" under Article 14;
• whether the different treatment in the statutory scheme was objectively justifiable (legitimate aim and proportionality); and
• whether the detriment suffered related to the appellant's application for employment.

Reasoning and outcome: The court accepted that the complaint fell within the ambit of Article 10. Applying the approach in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26 and guidance from earlier authorities (including Gilham), the court emphasised that Parliament had considered and rejected a wider amendment to extend whistleblowing protection to all job applicants and had specifically empowered regulations to protect NHS applicants in light of identified patient‑safety concerns (the Francis review). The court found that applicants outside the NHS are not in a materially analogous position to workers or NHS applicants given the aims of the statutory scheme, and, in any event, Parliament's differential treatment pursued legitimate aims and was proportionate. The court also held the detriment alleged related to a complaint about alleged charity financial irregularities and was not a detriment suffered in the appellant's capacity as a job applicant. The appeal was dismissed.

Appeal dismissed. The Court of Appeal held that the Employment Rights Act provisions and the NHS recruitment regulations are compatible with Article 14 read with Article 10 ECHR: an external job applicant is not in a materially analogous position to workers or to NHS applicants for the purposes of Article 14, Parliament legitimately and proportionately limited protection to workers and NHS applicants to address specific public‑interest and patient‑safety concerns, and the detriment complained of did not arise in the appellant's capacity as a job applicant.

The claim was first heard and dismissed by an employment tribunal. The appellant's appeal to the Employment Appeal Tribunal was dismissed ([2024] EAT 3). The appellant then appealed to the Court of Appeal, which dismissed the appeal ([2025] EWCA Civ 379).