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Job applicants still not protected as whistleblowers 

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The Court of Appeal has determined that job applicants do not have the protection of whistleblowing law.   

The whistleblowing charity Protect intervened as a third party in the case of Sullivan v Isle of Wight Council to argue that whistleblowing protection should be available to all external job applicants. The current scope of whistleblowing law only covers job applicants to the NHS who are legally protected by the Employment Rights Act 1996 (“ERA 1996”) if they make a protected disclosure. Other workers, such as people doing work experience or agency workers, are also protected. However, all job applicants in other sectors – outside of the NHS – face the risk of being blacklisted if they blow the whistle and can be effectively excluded from the ability to work in their chosen field again.(1) The blacklisting of whistleblowers is all too frequent; employers can and do discriminate against applicants simply because they have blown the whistle in the past.  

Protect was given permission to intervene because the case gives rise to important issues of public policy. By making this intervention, Protect did not address the Court on the facts of the case or whether the Appellant should have protection from whistleblowing detriment in her particular case. 

Our intervention intended to assist the Court with a technical and complex area of law which has expanded considerably since the Public Interest Disclosure Act was passed in 1998.   

Whilst the Court has determined that job applicants do not have whistleblowing protection, the judgment makes clear that the purpose of Part IVA of the Employment Rights Act 1996 on whistleblowing protection was to protect the public interest by ensuring that information about wrongdoing, or threats to health and safety or the environment, could be disclosed.  

Elizabeth Gardiner, Protect Chief Executive said: 

“This judgment is disappointing. Job applicants who blew the whistle in a former role will have no remedy if a new employer refuses their application simply because they raised concerns in the past. We know of many whistleblowers who have had to change their professions: whistleblowing still comes with a huge personal cost. We continue to operate in a two-tier system with one rule for NHS job applicants and another rule for everyone else.  
 
The law needs to stand by all in the workplace who have the courage to speak up and stop harm and Parliament has the opportunity in the Employment Rights Bill to extend whistleblowing protections to include job applicants.”

Anna Birtwistle, a Partner in the Employment Team at Farrer & Co, noted: 

“We are privileged to have represented Protect on a Pro Bono basis with this third-party intervention. The judgment is particularly important in noting that a job applicant is capable of falling under “some other status” under Article 14 of the European Convention of Human Rights, and it clearly outlines the purpose of whistleblowing provisions in the ERA to protect the public interest.” 

Protect was assisted on a Pro Bono basis by Claire Darwin KC and Nathan Roberts of Matrix Chambers, and Anna Birtwistle, Rachel Nolloth, Shehnal Amin, Rhian Lewis, Caitlin Farrar and Ali Ahmad of Farrer & Co. 

(1) The term ‘blacklist’ is used solely because it is the legal term in the ERA 1996.

Notes to editors: 
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Please find copy of the Court of Appeal judgment here: Sullivan v Isle of Wight Council 03 April 2025 

In the case of Sullivan and Isle of Wight Council the submissions explored the relationship between the Employment Rights Act 1996 (“ERA 1996”) and Article 14 of the European Convention on Human Rights (“ECHR”) when read in conjunction with Article 10 ECHR. 

The appeal concerned whether the ERA 1996 is compatible with the ECHR and, if not, whether it ought to be read compatibly or whether the Court ought to make a declaration of incompatibility. 

Job applicants are recognised as a group capable of having a “status” for protection from discrimination under Article 14 of the European Convention on Human Rights. 

Protect’s intervention submitted that the ERA 1996, when read in accordance with ordinary domestic principles of interpretation, is incompatible with the ECHR. This is because external (non-NHS) job applicants can be subject to a detriment if they make a protected disclosure during the job application process, or on the ground that they have made a previous disclosure, and this difference in treatment is not justified. 

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