Farrer & Co represents Protect in Court of Appeal intervention in support of job applicants being protected against whistleblowing detriment

A case at the Court of Appeal is considering whether all external job applicants should have whistleblowing legal protection.

The charity Protect, the UK’s whistleblowing charity, has filed a third-party intervention at the Court of Appeal to widen whistleblowing protection to all external job applicants. The charity was given permission to intervene because the case gives rise to important issues of public policy. The charity is represented on a Pro Bono basis by Farrer & Co and Claire Darwin KC and Nathan Roberts of Matrix Chambers.

By making this intervention in the case of Sullivan and Isle of Wight Council, Protect is not addressing the Court on the facts of the case or whether the Appellant should have protection from whistleblowing detriment in her particular case.

Currently the scope of whistleblowing law does not include people applying for a job, other than 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. Because of the lack of legal protections, job applicants who blow the whistle in other sectors risk being blacklisted and can be effectively excluded from the ability to work in their chosen field again.[1] The blacklisting of whistleblowers is all too frequent; many potential employers are put off by the knowledge that a particular candidate has reported wrongdoing with a previous employer.

Protect’s submissions address whether external job applicants are protected by whistleblowing legislation if they have made a ‘protected disclosure’, which is to raise a public interest concern, normally about an employer, during the job application process.

Elizabeth Gardiner, Chief Executive at Protect, said:

“Job applicants need whistleblower protections. Callers to our legal advice line frequently tell us that their whistleblowing not only ends their jobs but that they fear they will never work in their chosen sector again - they are effectively blacklisted. There is nothing to stop employers discriminating against whistleblowers when they apply for jobs, and nothing to protect an applicant who raises a concern during the appointment process. This needs to change. Job applicants are already protected in the NHS - whatever role they apply for, not just those who work with patients. The law is inconsistent and we very much hope that this case will herald change.”

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

“It has been a privilege to assist Protect on a Pro Bono basis with this third-party intervention, which hopes to assist the Court of Appeal with a technical and complex area of law which has expanded considerably since the ERA was passed in 1996.”

Claire Darwin KC, of Matrix Chambers, said:

"This appeal raises complex and significant questions about the scope of whistleblowing protections under the Employment Rights Act 1996. I am pleased to have had the opportunity to assist Protect and contribute to the Court of Appeal’s consideration of these important legal issues, which have far-reaching implications for the protection of whistleblowers in the workplace."

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.

Notes to editors

For more information, and to arrange an interview, please contact:

• Mark Ellis, Head of Communications, Protect
  
  press@protect-advice.org.uk

• Ines Alves, Account Director at Farrer Kane & Co
  
  inesalves@farrerkane.com

The submissions explore 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 concerns 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.

Protect’s intervention submits 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. Protect submits that it is possible to interpret the ERA 1996 compatibly with the ECHR to widen whistleblowing protection to external (non-NHS) job applicants. Alternatively, Protect invites the Court to make a declaration of incompatibility.

About Protect

Protect is the UK’s leading whistleblowing charity and has unparalleled expertise on both the legal issues and the practical realities of whistleblowing. Protect supports whistleblowers by providing free and confidential legal advice. We support employers to implement effective whistleblowing arrangements and campaign for legal and policy reform to better protect whistleblowing.

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

© Farrer & Co LLP, February 2025