Sullivan v Isle of Wight Council [2025] EWCA Civ 379

Phyllis Sullivan, a job applicant who was unsuccessful in applications to the Council, claimed detriment for making a protected disclosure to her MP about alleged financial irregularities. The Court held that employment legislation protecting workers and NHS job applicants who make protected disclosures, but not job applicants generally, is compatible with Article 14 read with Article 10 of the Convention.

Facts

The appellant, Phyllis Sullivan, applied for posts with the Isle of Wight Council in October and December 2019 but was unsuccessful. Following her unsuccessful applications, she wrote to her Member of Parliament on 17 March 2020, complaining about alleged verbal abuse during the interviews and detailing alleged financial irregularities at the Shanklin Chine Trust, of which one of the interviewers was a trustee. A copy was sent to the respondent. The appellant’s complaint to the respondent was investigated and found unsubstantiated. The respondent refused to allow the appellant’s complaint to proceed to a second stage review under its complaints policy. The appellant claimed this refusal was a detriment imposed because she had made a protected disclosure.

Procedural Background

The appellant accepted she was neither a worker within the meaning of the Employment Rights Act 1996 (ERA) nor an applicant for a post with an NHS employer. She contended that the legislative provisions were incompatible with Article 14 read with Article 10 of the Convention. The employment tribunal dismissed her claim, as did the Employment Appeal Tribunal.

Issues

The principal issues were: (1) whether the appellant was in a materially analogous position to workers or applicants for NHS posts; (2) whether being a job applicant amounts to a ‘status’ for Article 14 purposes; (3) whether any difference in treatment was objectively justifiable; and (4) whether the protected disclosure related to the appellant’s application for employment.

Judgment

Analogous Position

Lewis LJ held that the appellant was not in a materially analogous position to workers or NHS applicants. Workers are in an employment relationship with the employer, whereas job applicants are not. NHS applicants are protected due to specific concerns about patient safety and the structure of the NHS as a national service.

The legislation aims to protect the public by ensuring that those in work who make disclosures of information about wrongdoing, or dangers to health and safety or the environment, to their employers… are protected from dismissal or being subjected to any detriment in their employment as a result of having disclosed information in the prescribed way.

Status

The Court accepted that being a job applicant could constitute ‘other status’ for Article 14 purposes, as it is a characteristic capable of distinguishing one group from another.

I would regard being an applicant for a job as capable of constituting some other status for the purpose of Article 14 of the Convention. It is a characteristic capable of distinguishing one group of persons from other groups.

Objective Justification

The Court applied the approach in R (SC) v Secretary of State for Work and Pensions, giving substantial weight to Parliament’s judgment. Parliament had specifically considered and rejected extending protection to job applicants generally in 2015. The Court found the legislation pursued a legitimate aim and the means adopted were proportionate.

Parliament has, therefore, weighed the competing interests of the wider community in encouraging disclosure of information, the interests of workers, applicants for posts in the NHS, and job applicants more widely. The courts are entitled to take into account the fact that Parliament has specifically debated a relevant issue.

The Fourth Issue

The Court also held that the protected disclosure as pleaded concerned alleged financial irregularities at the Shanklin Chine Trust, not matters connected with the appellant’s job application. The claim was made as a member of the public, not as a job applicant.

Implications

This decision confirms that the protected disclosure regime in the ERA, which protects workers and NHS job applicants but not job applicants generally, is compatible with the European Convention on Human Rights. The Court emphasised judicial deference to Parliament’s legislative choices in matters of social policy. The judgment provides guidance on the approach courts should take when assessing Convention compatibility of primary legislation, particularly regarding the weight to be given to Parliament’s considered judgment on competing interests.

Verdict: Appeal dismissed. The relevant legislation is compatible with Article 14 read with Article 10 of the Convention. The appellant was not in a materially analogous position to workers or NHS applicants, and any difference in treatment was objectively justified.

Source: Sullivan v Isle of Wight Council [2025] EWCA Civ 379