Phyllis Sullivan v Isle of Wight Council

Article 14 does not require identical protection for every group affected by a whistleblowing scheme. Job applicants are capable of having an other status, but they are not materially analogous to workers or to NHS job applicants where the statutory aims differ.

When primary legislation in the field of social policy is challenged, the court must identify its aim and assess whether the means are appropriate and proportionate. Substantial weight is ordinarily given to Parliament’s considered choices, including decisions to address an urgent sector-specific problem without extending protection generally. The Employment Rights Act 1996 therefore provides objectively justified protection for workers and NHS applicants without requiring protection for all job applicants.

The appellant applied unsuccessfully for two finance posts with the Isle of Wight Council. After the interviews, she complained about the interview process and alleged financial irregularities involving a charitable trust. The Council investigated but refused a further review under its complaints procedure. She claimed that this refusal was a detriment for making a protected disclosure.

The employment tribunal dismissed the claim. The Employment Appeal Tribunal dismissed the appeal, holding that she was not in a materially analogous position to workers or NHS applicants, and that being a job applicant was not an other status under Article 14. It also held that the alleged detriment was unrelated to her job application. The central issues before the Court of Appeal were analogous position, status, objective justification, and the connection between the disclosure, detriment and application.

Appeal dismissed. Lewis LJ gave the leading judgment. Holgate LJ agreed. Underhill LJ agreed with the result and with the reasoning on objective justification.

1. The appellant was not in a materially analogous position to workers. The legislation protects those in an employment relationship who make disclosures about wrongdoing or threats to health, safety or the environment and suffer detriment in employment. Job applicants are not in work or in that relationship.
2. She was also not materially analogous to applicants for NHS posts. The NHS provisions addressed the specific problem of maintaining patient safety and enabling staff to move between legally distinct NHS bodies without being disadvantaged for making protected disclosures. That sector-specific concern did not apply generally to other job applicants.
3. The Court nevertheless held that being a job applicant was capable of constituting an other status under Article 14. It was an acquired characteristic distinguishing one group from others.
4. The legislation was objectively justified. The appropriate approach was that in R (SC), giving substantial weight to Parliament’s judgment in social-policy legislation while assessing whether the legislative means were appropriate and proportionate. Parliament had expressly rejected an amendment extending protection to job applicants generally and had legislated separately for NHS recruitment. The legislative aims were legitimate, and the means adopted were proportionate. A rigid three- or four-stage analysis under Bank Mellat was not required, although applying that analysis would have produced the same result.
5. The Court did not need to decide the section 3 interpretive issue. It nevertheless observed that extending the scheme to all job applicants would cut across a basic feature of the legislation. Separately, the claim concerned a public complaint about alleged financial irregularities at a charity, not a detriment suffered in the appellant’s capacity as a job applicant. Applying Tiplady, the claim therefore failed on that additional ground.

• Court of Appeal (Civil Division): in [2025] EWCA Civ 379, dismissed the appeal.
• Employment Appeal Tribunal: in [2024] EAT 3, dismissed the appeal from the employment tribunal.
• Employment Tribunal: dismissed the protected-disclosure claim. No citation is stated in the judgment.