UK: whistleblowing protection does not apply to most job applicants

The Court of Appeal has ruled that external job applicants cannot bring whistleblowing claims against their prospective employer (with the exception of NHS job applicants, who are expressly protected).  

The claimant had argued that the express exclusion of job applicants from whistleblowing protection was a breach of human rights law, in that it discriminated against her in not protecting her human right to freedom of expression because of her ‘status’ as a job applicant (under Article 14 of the European Convention of Human Rights (ECHR)). To succeed, she needed to show that she had been treated less favourably than other people in an analogous situation (ie internal workers or NHS job applicants) because of this status and that this was not objectively justified. The Court dismissed the claim, holding that: 

• being a job applicant could be a ‘status’ for ECHR purposes (despite it being the result of a one-off personal choice to apply for a particular job); 
• however, external job applicants were not in an analogous situation to internal workers, who are much more likely to become aware of wrongdoing that it is in the public interest to disclose;  equally, NHS job applicants were not analogous given the public importance of disclosures about patient safety and the need for protection when staff move between jobs for different NHS entities; 
• the scope of the legislation was objectively justified: Parliament has a wide margin of appreciation in a situation where it had expressly considered whether to extend whistleblowing protection to cover all job applicants and decided against; 
• the detriment has to be suffered by the claimant in their protected capacity, ie in this case the detriment would have to be related to the job application (whereas the disclosures were made a few months after the job application process had ended and the detriment claimed concerned the council’s decision not to complete its public complaints process for her complaints about the interviewers’ conduct, including alleged financial irregularities by one of the interviewers in his capacity as trustee of a charity).  

Of course, despite the lack of whistleblowing protection for most job applicants, employers should continue to ensure their recruitment decisions are based on relevant and well-documented reasons, given that applicants can still bring discrimination claims.  The Government has stated that it is considering reforms to whistleblowing law, which could include expanding the types of individuals protected, although as yet the only change included in the Employment Rights Bill is to clarify that disclosures about sexual harassment qualify for whistleblowing protection.