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Job applicants

Job Applicants

The issue:

Job applicants (other than NHS workers) do not have protection under whistleblowing law. This means that if you are rejected for a job because you blew the whistle in your last employed role,  you would be unlikely to have a remedy in an employment tribunal against your new  prospective employer.

It is unfair that whistleblowers should suffer in this way because they raised genuine public interest concerns. It essentially leads to some being ‘blacklisted’ and damaging their career prospects, and potentially forcing them into financial ruin.

Employers who actively refuse to hire whistleblowers are causing us all harm, as without whistleblowers, public interest wrongdoing will go unreported. Employers who blacklist employees will deter their current workforce from raising any concerns they witness.

Blacklisting for trade union membership is unlawful but no comparable law exists for whistleblower job applicants. There is one narrow exception –  an NHS employer must not “discriminate” against a job applicant because it appears they are a whistleblower and this has been the case since 2018. Discrimination here is defined as refusing an application or treating an applicant less favourably than others.

Employment law rights?

Job applicants currently have relatively limited rights in law. They are, however, covered under the Equality Act 2010 so a job applicant can make a discrimination claim if they believe they have been rejected because of a protected characteristic, such as sex or race.

Research

  • ‘Post-disclosure survival strategies’ by Kate Kenny and Marianna Fotaki (2019) demonstrates the substantial costs incurred by whistleblowers after making their disclosure. This includes a significant financial cost averaging £216,987 per person and a reduction in income for 65.2% of whistleblowers.  Whistleblowers who lose their job struggle financially and also suffer other costs, such as poor physical health and mental-wellbeing.
  • On blacklisting specifically, this report finds that of the 77 respondents who answered whether they had been blacklisted in the industry, 63.6% reported they had been formally blacklisted (they had encountered written proof), 20.8% had been informally blacklisted (had verbal proof), and 28.6% had not been blacklisted.

Blacklisting in the construction industry

In 2009, the Information Commissioner’s Office discovered a blacklist of over 3,200 names of workers in the construction industry who were involved with union activities or whistleblowing. This list was created by an organisation called The Consulting Association, with contributions from The Metropolitan Police.  Many of these workers were denied employment for years and the construction companies have since paid over £5.6m in compensation in settlements.

Blacklisting in the construction industry had a devastating impact on the career and lives of these whistleblowers and they only received compensation after long and protracted legal battles, with the support of their unions.

Case study: Alan Wainwright

Alan Wainwright worked as a construction industry manager and raised concerns about construction firms keeping a log of employees’ involvement in TU activities. He was dismissed and claimed that he had unsuccessfully applied for more than 150 jobs in 18 months. He, together with other workers, issued proceedings in the High Court against 30 employers for denying them jobs, including Balfour Beatty, Carillion, Laing O’Rourke and Sir Robert McAlpine. The vast majority of these claims settled.

Protect says

Clearly more needs to be done to support whistleblowers in the devastating losses that they may suffer than just giving them more legal rights.  However, extending the scope of whistleblowing law to job applicants would provide them with an additional remedy in the employment tribunal to alleviate some of these costs.

The ‘NHS exception’ is inadequate because it leaves workers in other sectors unprotected and it introduces anomalies with the rest of whistleblowing law. For example, an employment tribunal has the power to recommend that the NHS employer take steps to reduce the adverse effects of the discrimination yet this powerful remedy does not extend to all workers

By giving whistleblowers a direct legal right against prospective employers, it offers them better access to justice and makes employers accountable for rejecting whistleblower job applicants.

UK whistleblowing law is deficient in comparison to the new EU Directive (2019/1937) on whistleblowing which encapsulates a European consensus favouring wide and bold whistleblowing protection.  Without legal reform, the UK risks leaving large part of our workforce without whistleblowing protection, and trailing behind European countries.

Whistleblowing affects us all. Protect’s campaign Let’s Fix UK Whistleblowing Law needs your support. Click the banner below to write to your local MP.