UK: Whistleblowing: Detriment Claims
Authors: Stephen Miller, Corinna Harris, and Sophie Jackson
The Court of Appeal has ruled that a job applicant could not bring a whistleblowing detriment claim.
Ms Sullivan applied for positions with the Council and attended interviews, but her applications were unsuccessful. She subsequently alleged that she had been subjected to verbal harassment by the managers who interviewed her and made separate allegations of financial irregularity about a Council employee in relation to a charity. The Council concluded that there was no evidence of any wrongdoing.
The Council did not allow a right of appeal given the extent of the investigation already undertaken and the impact on the staff involved. Ms Sullivan issued a whistleblowing claim, on the basis that the refusal to allow an appeal was a detriment because she had made a protected disclosure.
A tribunal dismissed her claim on the grounds that whistleblowing protections did not extend to her as she was not a worker or an employee. The EAT dismissed her appeal.
The Court of Appeal found that, as an external job applicant, Ms Sullivan was not in an analogous situation to internal job applicants or applicants for jobs with NHS employers (who do have protection against whistleblowing detriment). It noted that the position of someone seeking work is materially different from someone in work. As for those who applied for work in the NHS, the whistleblowing protection is necessary to safeguard patient safety – and this concern does not apply to job applicants in other sectors.
Key Action Points for Human Resources and In-house Counsel
Except for NHS job applications, external job applicants do not have whistleblowing protection during the recruitment process.
One of the Employment Rights Bill proposals is that sexual harassment will be added as a new category of wrongdoing for whistleblowing disclosures.
