Case study of a whistleblowing claim

Case background on whistleblowing 

Ms Sullivan had been unsuccessful in applying for 2 accounting positions with the Isle of Wight Council. The factual timeline is quite complicated as, in response to these two rejections, the claimant brought several different complaints both internally and to outside agencies at the same/similar time. In essence, she alleged that the 4 interviewees from the Council (it had been the same people in both interviews) had behaved inappropriately. She also alleged other issues of impropriety. 

After the second rejection, the claimant filed an online crime report with Hampshire Police concerning an alleged verbal assault at interview. The claimant also filed a report on the respondent’s confidential safeguarding helpline in which she alleged that it had been repeatedly stated in both of her interviews that she was apparently “mentally insane” as well as other complaints of inappropriate language and behaviour on the part of her interviewers. The claimant also wrote to the Respondent’s Chief Executive, as well as to the Local Government and Social Care Ombudsman. The claimant also complained to the Care Quality Commission and to her local MP. It is the letter to the MP that the claimant sought to rely on as her protected disclosure. The Respondent offered to investigate her complaints internally, although these were not upheld. Later, an investigation into the claimant’s complaint was undertaken by a Strategic Manager in the Business Centre, to which the claimant was invited to contribute.

The claimant then brought an employment tribunal claim for whistleblowing detriments against the Council. As the provisions of whistleblowing protection only apply to current or former employees, she argued she had a claim under Article 10 of the European Convention on Human Rights (ECHR) and also, as an “external candidate”, she was able to bring a claim for discrimination under Article 14 as she fell within the definition of “other group”. She also tried to argue that she was in the same category as judicial office holders as per a previous case of Gilham v MoJ.

Both the employment tribunal and the Employment Appeal Tribunal (EAT) dismissed the claimant’s claim for protected disclosures and/or protection under the ECHR. The EAT said that as Ms Sullivan was as an external candidate, she was neither a current or former employee or worker and therefore she did not have a qualifying whistleblowing claim. Nor was she in the category of “other” to bring claims under the ECHR. If the law was to be changed to include external candidates within the provisions of whistleblowing protection, the EAT said that this was a matter for Parliament and not the courts. Case dismissed.

 

Conclusion and avoiding whistleblowing claims

A complicated case with many complaints and routes sought by the claimant to seek justice; however, at the heart of the case is a restatement of that law that candidates for employment cannot claim protections under whistleblowing laws, save for a caveat regarding certain NHS job candidates. Similarly, her status as an “external candidate”, did not allow her to claim discrimination under Article 14 of the ECHR as being part of an “other group”.

This case of Miss P Sullivan -v- Isle of Wight Council is also a good reminder for ensuring there are robust recruitment processes, for example, ensuring that in an interview process, where practicable, there is more than one person interviewing to avoid issues of misinterpretation. Also, keeping notes of interviews and decision-making processes is also advisable. Although a case involving whistleblowing, remember that discrimination rights do not require the claimant to be an employee or worker as rights apply much earlier.

 

Do you need legal advice?

For advice on this case, whistleblowing protections or recruitment processes more generally, please speak to our employment team on [email protected].