NO WHISTLEBLOWER PROTECTION FOR JOB APPLICANTS – thoughts on the Court of Appeal judgment in P Sullivan v Isle of Wight Council (Department of Business and Trade and Protect intervening) [2025] EWCA Civ 379

As you will by now know, Fergus McCombie, leading Louisa Simpson, both of Pump Court, was recently successful in the Court of Appeal on the question whether whistleblowing protection ought to be extended to job applicants.

You can read the full judgment here 

In this article, Fergus and Louisa share some insights into and thoughts on the Court of Appeal judgment.

Workers and NHS job applicants are protected under the Employment Rights Act 1996 against suffering detriment or dismissal from their employer or putative employer because of having blown the whistle. The Appellant argued this legislation is incompatible with her Article 10 Convention right to freedom of speech, by discriminating against her contrary to Article 14 in the enjoyment of that right, on the ground she was a job applicant for non-NHS employment. The Court of Appeal, upholding the EAT’s judgment in favour of the Council to which she applied, dismissed the appeal, holding that:

1. The Appellant, as an applicant for work, is not in a materially analogous position to workers or NHS applicants;
2. Any difference in treatment (between a job applicant and a worker or NHS job applicant) is objectively justified, as the legislation pursues a legitimate aim and the means adopted to achieve that aim are proportionate;
3. Further, this Appellant’s protected disclosure did not relate to her application for employment in any event.

Some interesting points arise from the CA judgment:

On the outside, looking in

The CA acknowledged that there will, of course, always be some cases which fall on the periphery of, or even outside, the main aim of legislation – that does not mean those peripheral matters change or broaden the legislation’s main aim, nor does it mean the legislation is not capable of objective justification.

It was argued by the second intervener, Protect (the UK whistleblower’s charity), that on a detailed consideration of the legislative provisions, there are instances where people not in the workplace who make a disclosure are protected (e.g. because they were employed but had not yet taken up work, as in MacLennan; or because they had left the employer, as in Woodward). It was also submitted that a worker is protected in respect of disclosures not related to the workplace, and that NHS job applicants are protected even where their disclosure is not concerned with patient safety.

The CA considered that legislation necessarily differentiates between groups of people by identifying which groups, in which circumstances, will enjoy protection. The fact that legislation could in theory extend to some cases which could be said to be on the periphery of, or even outside, the core purpose of the legislation, does not mean the legislation was aimed at protecting them, nor that it lacks objective justification, still less that the legislation must be made to extend to whole groups of people to whom Parliament does not intend it to apply.

Neither did the fact that examples exist of peripheral applications of the legislation beyond the category of contractual workers, and beyond a single recognisable workplace, bring the applicant into an analogous situation with those clearly protected groups. The Appellant argued that the whistleblowing provisions of Part IVA ERA 1996 were not as narrow as the Council and Department for Business and Trade (intervening) suggested. Whilst it would be the typical whistleblowing case, the whistleblower does not in fact have to be a worker, the wrongdoing does not have to be in the workplace, and the disclosure does not have to be made to the employer (see, for example, the expansion of ‘worker’ in s.43K ERA and interpretation by the courts in Elstone, MacLennan, Woodward, Onyango). The CA, though, held that the core aim of the legislation is what is relevant when determining material differences in analogous situations.

Ready, AIM (fire)

Not only is the aim of the legislation obviously relevant to the question of objective justification, it is also key to determining whether two groups are in a “materially analogous position”. That is because they must be in a “relevantly” similar situation. A difference in treatment is only relevant for the purposes of Article 14 (i.e. of assessing whether there has been discrimination), if the difference is one which relates to the aims of the measure in question. This is not new, and was highlighted by Lord Reed in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26 at [59], but it was particularly relevant in the present case. Workers are protected by legislation aimed at disclosures made by those in work – this is a relevant material difference between workers and applicants for work. Similarly, NHS applicants are protected by legislation aimed at dealing with the identified specific and urgent problem of ensuring a culture within the health service permitting protected disclosures concerning patient safety.  Applicants for jobs in other areas are in a relevantly different, and not analogous, position.

–JUSTIFY TEXT–

Underhill LJ reiterated that, as is often the case in claims based on Article 14, the issues of analogous position, status and objective justification overlap, and it is often most helpful to focus on objective justification. That said, the judgment does manage to deal with and answer each question separately, and the appeal in fact fell at the first hurdle, the question of “analogous position”.

There was some discussion as to whether to approach the question of objective justification squarely in line with SC, or applying the approach in Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39. The CA confirmed the appropriate approach was that set out by the Supreme Court in SC. SC concerned welfare benefits, but Lord Reed made clear the approach applied more broadly to “legislation in relation to general measures of economic and social strategy”. The SC approach gives more appropriate weight (usually substantial weight) to the judgment of the legislature in fields including economic and social policy and matters relating to moral and ethical issues, whilst identifying circumstances which may call for a greater degree of scrutiny to be applied.

Accordingly, the starting point is to identify the aim or purpose of the legislation – primarily to be ascertained from the language used in the legislation. There are then a number of potentially relevant factors to take into account when considering whether a difference in treatment arising from legislation enacted by Parliament is objectively justified. In the present case, the relevant factors included:

1. The ground of difference in treatment. If a “suspect” ground, such as sex or race or ethnic origin, generally weighty reasons and a more intense and strict review will be required to justify any difference in treatment.
2. Whether Parliament has itself considered and formed a judgment on the balance between competing interests. Where it has done so, substantial weight will usually be given to the judgment of Parliament, out of respect for democratic decision-making on questions of political controversy. Other relevant factors will be whether the legislation is relatively recent, or dates from an age with different values from the present time. The courts should go no further than ascertaining whether matters relevant to compatibility were raised during the legislative process, and must avoid assessing the adequacy or cogency of Parliament’s consideration of them.
3. The fact that primary legislation necessarily involves differentiating between different groups of people on different grounds. It is inherent in the legislative process that such distinctions have to be drawn. It is also right to bear in mind that Parliament may legitimately consider that a particular problem affecting one sector of society needs to be remedied by way of legislation, even if other groups consider that they too are deserving of similar action. The fact Parliament has chosen to legislate for one particular set of circumstances is unlikely, of itself, to demonstrate any lack of objective justification for the legislation that is adopted.

In SC, the Supreme Court did not consider it necessary to go through the three or four-stage analysis in Bank Mellat or other cases. Nor did the CA in the present case, though it considered that in any event applying a staged process has the same result. The CA highlighted the danger of seeking to overanalyse or over-refine the approach to objective justification. Whilst it was clear SC was the approach to be adopted, following a different approach, when considering the function the court is performing, ought to produce no different a result.

Who needs the Government?

There was some discussion as to who bore the burden of proving that a difference in treatment is objectively justified. Though the CA highlighted that questions of burden and standard of proof are rarely, if ever, going to assist or be determinative of the question of objective justification, it recognised that strictly it is for the person asserting the difference in treatment is objectively justifiable who bears the burden of proving the same.

Practically speaking, therefore, it will often be the employer seeking to justify differential treatment in legislation. There was, therefore, further discussion as to how an employer might seek to do that, and in what circumstances it is appropriate for the government to intervene. The CA confirmed that the ET will usually be able to determine justification by consideration of the legislation and any permissible aid to statutory interpretation. However, the government department which sponsored the legislation is likely to have the greatest interest in, and knowledge of, relevant aids to interpretation. Whilst the ET or EAT can invite the relevant government department to intervene, the CA stated this should not occur as routine, and will be relatively rare.

Chasing status

The one argument the Appellant succeeded on was status. Had the appeal succeeded on the other grounds, the CA held that being an applicant for work was sufficient to amount to “other status” as a ground for discrimination, for the purposes of Article 14.

We have seen in other cases “status” being broadly considered identifiable, objective or personal characteristics by which groups of persons are distinguished from one another (Clift v UK), including innate characteristics as well as those acquired, including by choice (R (Stott) v Secretary of State for Justice). It may also be a characteristic acquired by reason of something being done to a person (R(A) v CICA).

The CA’s judgment in the present matter really highlights the breadth of “status” for the purposes of Article 14, being anything which is a characteristic capable of distinguishing one group of persons from other groups.

Whistle while you work

Running through this case, at least from the appeal stages, was an argument about whether the whistleblowing disclosure the Appellant had made was connected to work at all.  It concerned the operations of a charitable trust in which one of her interviewers was involved, but was made after the interview process had concluded.  The detriment was the refusal to allow an appeal within a complaints procedure open to the public.  On that basis, the CA held that the EAT had been correct to find that the detriment had not been suffered in her capacity as a job applicant (relying on Tiplady v. Bradford MDC), and refused the appeal on that additional ground.

To some extent this was a pleadings point (and would have been affected by the Appellant arguing the matter differently at the very first stage before the ET), but it illustrates the well-worn theme that it can often pay dividends (as in discrimination cases) to identify with precision the link between a detriment and its alleged cause.

Respect for democratically elected legislature

There is no fun sub-heading title for this concluding paragraph… But in a time of various news headlines criticising a system which “permits unelected judges to ‘overturn’ law made by democratically elected legislature”, this case serves as a reminder of the appropriate weight and respect which will be given and shown to such legislative decisions, particularly in the fields of economic and social policy, including moral and ethical issues. The CA took the time to note in particular that courts must be astute to ensure that challenges to legislation do not become a means of arguing for a particular policy outcome under the guise of challenges to differences in treatment resulting from primary legislation adopted by a democratically elected legislature.

By Fergus McCombie & Louisa Simpson