Court of Appeal case study: Sullivan v Isle of Wight Council
Non-NHS external job applicants are not protected from blowing the whistle
In 2024, we published a case study on the Employment Appeal Tribunal (the “EAT”) decision on Sullivan v Isle of Wight Council. For a reminder on the facts, please click here.
By way of a brief overview, Ms Sullivan (the “claimant”) applied for two positions at the Isle of Wight Council (the “respondent”). The claimant was unsuccessful for both jobs and subsequently filed an online crime report to the police alleging that she was subject to a verbal assault during the interview. She also disclosed that a charitable trust (which one of the members of the interview panel was a trustee of) was dormant but had been taking revenues for many years. The claimant also reported the issues to the respondent’s safeguarding helpline, to its Chief Executive, to the Care Quality Commission, and wrote a letter to her MP.
After the respondent carried out an internal investigation and found that the claim was unsubstantiated, the claimant was denied the usual right (as in the respondent’s complaint’s policy) to an appeal.
The claimant then made a complaint to the Employment Tribunal, alleging that her complaint about financial irregularities amounted to a protected disclosure and she was thereafter subject to detriment as she was denied the right to an appeal. She claimed that job applicants should be covered by whistleblower protections in the same way that NHS job applicants or workers are. The Employment Tribunal did not find in her favour.
On appeal, the EAT found that an external job applicant is not analogous to an internal applicant (that already has existing employee/worker status) or an NHS job applicant (who are specifically included in the legislation given the potential patient safety issue).
Court of Appeal Decision
The claimant appealed the EAT’s decision and this was heard on 3 April 2025.
The claimant argued that the interpretation of the Employment Rights Act (the “ERA”) is incompatible with Article 14 (protection from discrimination) read with Article 10 (freedom of expression) of the European Convention on Human Rights (“ECHR”), as it does not protect external job applicants unless they are applying for a position within the NHS.
Although the Court of Appeal considered that external applicants could belong to an “other status” bringing them within Article 14 of the ECHR, hence protecting those of “other status” from discrimination, the court held that an external job applicant was not in a materially analogous position to workers or NHS job applicants. It was stated that the “position of someone seeking work is materially different from someone in work”.
Importantly, the discussion also involved why the claimant’s position is different to an applicant for an NHS role. The ERA was amended to include applicants for NHS employers in order to address protected disclosures relating to patient safety and treatment. It was important to not deter people from making such disclosures through fear of not being able to move to another NHS body.
The Court of Appeal concluded that any difference in treatment was a proportionate means of achieving a legitimate aim.
Key Takeaways
Despite the whistleblowing charity “Protect” intervening as a third party during this case and calling for protection for job applicants, external job applicants do not have the same protections under the ERA as employees or NHS job applicants.
This means that external job applicants who blow the whistle could face discrimination for future applications in that field of work, hence this could deter applicants from disclosing publicly important information.
Contact us
Libby Gissing is a solicitor apprentice in our employment law team. If you have any questions about any of the issues covered in this article, or need legal advice, please get in touch with the team today.