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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Sullivan v Isle of Wight Council [2025] EWCA Civ 379 (03 April 2025) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2025/379.html Cite as: [2025] WLR(D) 191, [2025] EWCA Civ 379 |
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ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
THE HONOURABLE MRS JUSTICE ELLENBOGEN DBE
[2024] EAT 3
Strand, London, WC2A 2LL |
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B e f o r e :
(Vice-President of the Court of Appeal (Civil Division))
LORD JUSTICE LEWIS
and
LORD JUSTICE HOLGATE
____________________
PHYLLIS SULLIVAN |
Claimant/ Appellant |
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- and - |
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ISLE OF WIGHT COUNCIL |
Defendant/ Respondent |
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- and - |
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(1) DEPARTMENT FOR BUSINESS AND TRADE (2) PROTECT |
Interveners |
____________________
Fergus McCombie and Louisa Simpson (instructed by the Isle of Wight Council Legal Department) for the Respondent
Robert Moretto (instructed by the Treasury Solicitor) for the First Intervener
Claire Darwin KC and Nathan Roberts (instructed by Farrer & Co) for the Second Intervener
Hearing dates: 19 and 20 February 2025
____________________
Crown Copyright ©
LORD JUSTICE LEWIS:
INTRODUCTION
(1) is the appellant in a materially analogous position to (a) workers or (b) applicants for posts with NHS employers?;
(2) does being a job applicant amount to a status for the purpose of Article 14 of the Convention?;
(3) is the difference in treatment arising out of the relevant statutory provisions objectively justifiable?; and
(4) was the disclosure related to the appellant's application for employment?
THE LEGAL FRAMEWORK
Protected Disclosures by Workers
"In this Act a "protected disclosure" means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H."
"(1) In this Part a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—
(a) that a criminal offence has been committed, is being committed or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged, or
(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.
(2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.
(3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.
(4) A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.
(5) In this Part "the relevant failure", in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1)."
"(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure —
(a) to his employer, or
(b) where the worker reasonably believes that the relevant failure relates solely or mainly to —
(i) the conduct of a person other than his employer, or
(ii) any other matter for which a person other than his employer has legal responsibility,
to that other person.
(2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer."
1) A qualifying disclosure is made in accordance with this section if—
…..
(b) the worker reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,
(c) he does not make the disclosure for purposes of personal gain,
(d) any of the conditions in subsection (2) is met, and
(e) in all the circumstances of the case, it is reasonable for him to make the disclosure.
(2) The conditions referred to in subsection (1)(d) are—
(a) that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with section 43F,
(b) that, in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or
(c) that the worker has previously made a disclosure of substantially the same information—
(i) to his employer, or
(ii) in accordance with section 43F.
(3) In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to—
(a) the identity of the person to whom the disclosure is made,
(b) the seriousness of the relevant failure,
(c) whether the relevant failure is continuing or is likely to occur in the future,
(d) whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person,
(e) in a case falling within subsection (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with section 43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and
(f) in a case falling within subsection (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer.
(4) For the purposes of this section a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in subsection (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure."
(1) A qualifying disclosure is made in accordance with this section if—...
(b) the worker reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,
(c) he does not make the disclosure for purposes of personal gain,
(d) the relevant failure is of an exceptionally serious nature, and
(e) in all the circumstances of the case, it is reasonable for him to make the disclosure.
(2) In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to the identity of the person to whom the disclosure is made."
"(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure."
The extension of protection to applicants for NHS Posts
The Structure of the NHS
The Background to the Legislation
"8. The NHS is not alone in facing the challenge of how to encourage an open and honest reporting culture. It is however unique in a number of ways, It has a very high public and political profile. It is immensely regulated and, whilst the system consists of many theoretically autonomous decision-making units, the NHS as a whole can in effect act as a monopoly when it comes to excluding staff from employment. Further, the political significance of almost everything the system does means that there is often intense pressure to emphasise the positive achievements of the service, sometimes at the expense of admitting its problems."
"95. The legislation applies to all employers, not only those in the NHS, so it would not be appropriate to make recommendations for amendment which might impact on other sectors in ways that I am not aware of. However I am particularly concerned by one aspect of the legislation, which is that it does nothing to protect people who are seeking employment from discrimination on the grounds that they are known to be a whistleblower. This is an important omission which should be reviewed, at least in respect of the NHS. I invite the Government to review the legislation to extend protection to include discrimination by employers in the NHS, if not more widely, under the Employment Rights Act 1996 or the Equality Act 2010."
"9.17 Although the existing legislation is weak, I have not recommended a wholesale review of the 1996 Act for two reasons. First, I do not think legislative change can be implemented quickly enough to make a difference to those working in the NHS today. What is needed is a change in the culture and mindset of the NHS so that concerns are welcomed and handled correctly. If this can be achieved, fewer staff will need recourse to the law. Second, this Review is concerned only with the position of disclosures made within one part of the public sector, the NHS. The Act covers all forms of employment whether in the public or private sectors.
…..
9.19 There is one more general area where I think consideration needs to be given to strengthening. The evidence that I have seen during the course of the Review indicates that individuals are suffering, or are at risk of suffering, serious detriments in seeking re-employment in the health service after making a protected disclosure. I am convinced that this can cause serious injustice: they are effectively excluded from the ability to work again in their chosen field. With that in mind, I think that consideration does need to be given to extending discrimination laws to protect those who make a protected disclosure either in the Employment Rights Act 1996 or the Equality Act 2010 or to finding an alternative means to avoid discrimination on these grounds."
The Legislation
"PART 5A PROTECTION FOR APPLICANTS FOR EMPLOYMENT ETC IN THE HEALTH SERVICE
49B Regulations prohibiting discrimination because of protected disclosure
(1) The Secretary of State may make regulations prohibiting an NHS employer from discriminating against an applicant because it appears to the NHS employer that the applicant has made a protected disclosure.
(2) An "applicant", in relation to an NHS employer, means an individual who applies to the NHS employer for—
(a) a contract of employment,
(b) a contract to do work personally, or
(c) appointment to an office or post.
(3) For the purposes of subsection (1), an NHS employer discriminates against an applicant if the NHS employer refuses the applicant's application or in some other way treats the applicant less favourably than it treats or would treat other applicants in relation to the same contract, office or post.
…..
(6) "NHS employer" means an NHS public body prescribed by regulations under this section.
(7) "NHS public body" means—
(a) the National Health Service Commissioning Board;
(b) an integrated care board;
(c) a Special Health Authority;
(d) an NHS trust;
(e) an NHS foundation trust;
(f) the Care Quality Commission;
(g) Health Education England;
(h) the Health Research Authority;
(i) the Health and Social Care Information Centre;
(j) the National Institute for Health and Care Excellence;
(k) Monitor;
(l) a Local Health Board established under section 11 of the National Health Service (Wales) Act 2006;
(m) the Common Services Agency for the Scottish Health Service;
(n) Healthcare Improvement Scotland;
(o) a Health Board constituted under section 2 of the National Health Service (Scotland) Act 1978;
(p) a Special Health Board constituted under that section.
….."
"3. Prohibition on discrimination because of protected disclosure
An NHS employer must not discriminate against an applicant because it appears to the NHS employer that the applicant has made a protected disclosure."
Proposed Amendments
"(e) is or has been a job applicant".
Further Legislation
The HRA and the Convention
"Prohibition on Discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
(1) does the subject matter of the complaint fall within the ambit of one of the Convention rights?;
(2) has the person making the claim been treated less favourably than other people who are in an analogous, or relevantly similar, situation?;
(3) is that difference in treatment based on an identifiable characteristic amounting to a status?; and
(4) is the difference in treatment objectively justifiable? That in turn involves consideration of whether the measure giving rise to the differential treatment pursues a legitimate aim and whether there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The burden is on those seeking to contend that the legislative measures are objectively justified to demonstrate that that is so.
"(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect to in a way which is compatible with Convention rights".
THE FACTS
The Interviews
The Complaint to the Respondent
The Protected Disclosure
The Consideration and Outcome of the Complaint
The Claim to the Employment Tribunal
THE JUDGMENTS IN THE EMPLOYMENT TRIBUNAL AND THE EAT
The Judgment of the Employment Tribunal
"(3) The Claimant confirmed that it is her case that references to such matters in the letter dated 17 March 2020 constituted a qualifying disclosure for the purposes of section 43B(1)(a) and/or (b) of the Act. In summary the claimant says that she made a disclosure which in her reasonable belief was in the public interest and tended to show that a manager of the respondent (Mr Porter) had committed a criminal offence (fraud) and/or had breached his legal obligations relating to the financial operation of a charitable trust (the Shanklin Chine Trust) in respect of alleged financial irregularities/the failure to submit truthful accounts of trading revenues to companies House.
…..
(5) Following the clarification of the claimant's alleged protected public interest disclosure (and the explanation by the Tribunal that the disclosure had to predate the alleged detrimental treatment) the claimant confirmed that the only alleged detriment upon which she relied was accordingly, the refusal by Ms Shand on 18 September 2020 to allow the claimant a right appeal against the rejection of her complaint pursuant to the respondent's complaint procedure."
"79. Having given careful consideration to all of the above, including that the tribunal is required pursuant to section 3 of the 1998 Act to read and give effect to legislation in a way which is compatible with Convention rights, the tribunal has reached the conclusions set out below.
"80. The tribunal has for such purposes given careful consideration to the four questions identified at paragraph 28 of Gilham as follows:
"(i) Do the facts fall within the ambit of one of the Convention rights—having for such purposes taken the claimant's case at its highest, the tribunal is satisfied that the facts may potentially fall within article 10 (freedom of expression) and article 14 (prohibition of discrimination—in respect of 'other status') namely, that the claimant was allegedly subjected to a detriment (the refusal of a right of appeal under the respondent's Complaints Policy) because she made an alleged protected public interest disclosure to her MP/the respondent on 17 March 2020 concerning the alleged conduct of Mr Porter in respect of the financial operation of the Shanklin Chine Trust as referred to above.
"(ii) Has the claimant been treated less favourably than others in an analogous situation—the claimant compares herself with others who are afforded protection under the Act namely employees/workers generally and also job applicants applying to join an NHS employer/NHS body (as defined in section 49B of the Act ). Having given the matter careful consideration the tribunal is not satisfied on the facts of this case that the claimant has established that she was in an analogous situation to the above for the following reasons: (a) the tribunal is not satisfied that a job applicant is in an analogous situation to an employee or worker of an organisation who has, by way of contrast as a minimum, entered a contract of employment or other contract/office and has become a member of the workforce with associated rights and responsibilities. The position in this case is very different to that in Gilham. In Gilham, although the claimant was not a worker or employee, she was an officeholder who was integrated into and operated as part of the workforce and who held a substantive and highly responsible judicial role; (b) further the tribunal is not satisfied … a job applicant such as the claimant (who applied to a local authority for financial positions) is in an analogous situation to a job applicant who applied for a role with an NHS employer/body where staff, with specialist medical and associated skills, regularly transfer between such organisations and where patient safety is of paramount importance.
"(iii) Is the reason for that less favourable treatment one of the listed grounds in article 14 of the Convention rights or some 'other status'—the tribunal is not satisfied that a 'job applicant' which is a very wide and generic grouping constitutes, particularly having regard to the matters previously referred to at para (ii) above, some 'other status' for the purposes of article 14 of the Convention rights.
"(iv) Is the difference without reasonable justification—the tribunal is, in any event, satisfied on the basis of the available information that there is reasonable justification for the difference in treatment between a generic and very wide-ranging group of job applicants, who otherwise have no relationship with the organisation (to which the claimant belongs), and the categories which Parliament has chosen to protect namely: (a) employees/workers who work or have worked for the organisation and (b) those that apply to NHS employers (as defined). The situation in this case is very different to that in Gilham. Moreover, the tribunal is strengthened in its view by the fact the EU, who considered the position of job applicants in 2019, chose to limit its protections to those job applicants who had gained 'information of breaches' during the recruitment process.
81. For the avoidance of doubt the tribunal is not satisfied that the claimant's reliance on the Enterprise and Regulatory Reform Act 2013 (which was the mechanism by which the meaning of the term worker was extended by the amendment of section 43K of the Act) adds anything to the above deliberations and this is therefore not separately addressed.
82. In all the circumstances, the tribunal is not satisfied that it has jurisdiction to entertain the claimant's complaint of detrimental treatment for making a protected public interest disclosure which complaint is therefore dismissed."
The Judgment of the EAT
"…external applicant in a sector other than the NHS is not in circumstances analogous to one in the latter sector. S/he is not, even indirectly (that is, in a non-clinical capacity), concerned with patient safety, nor was a sound evidence base, indicative of the existence of issues of a similar nature and extent outside the NHS, provided to the tribunal."
"…to define one's status by reference to the fact that, at one time, one has been an external job applicant is to define it by reference to the act of making the application, rather than by reference to a characteristic personal to the applicant (albeit one which is not necessarily innate or inherent), consistent with the nature of other grounds of discrimination outlawed by article 14 ECHR (though I do not thereby suggest that a strict ejusdem generis approach to the specified grounds, deprecated in Stott [2020] AC 51, para 80, should be followed)."
"43…..The position as there explained is to be contrasted with the position in this case, in which it is clear from the parliamentary debates with which I have been provided that the question of whether to extend the protection of Part IVA of the ERA to applicants outside the NHS was specifically considered. I am satisfied that it is appropriate to defer to the evidence-based opinion and choice then made by Parliament. I am further satisfied that the tribunal was entitled to discern the aims of the primary and secondary legislation from their terms and to find that those aims were legitimate. That it did so is apparent from its language, albeit contracted, at para 80(iv):
"the tribunal is, in any event, satisfied on the basis of the available information that there is reasonable justification for the difference in treatment between a generic and very wide-ranging group of job applicants, who otherwise have no relationship with the organisation (to which the claimant belongs), and the categories which Parliament has chosen to protect namely: (a) employees/workers who work or have worked for the organisation and (b) those that apply to NHS employers (as defined)."
44. Problematic, however, was the tribunal's approach to the question of proportionality, in the absence of any evidence going to that matter and the structured approach to answering that question required by Bank Mellat. Had the answers to the first to third Gilham questions (and my conclusions set out below) been otherwise, I would have remitted the matter for fresh consideration of that particular question. Whilst having sympathy with Mr Jupp's submission that this particular respondent had made its bed in deciding not to adduce any evidence in that connection, the issue is of significance beyond this litigation and, had the matter been remitted, it would have been appropriate for the Secretary of State to have been invited to consider whether he would like the opportunity to adduce evidence and be heard on the point, as Mr Jupp's submissions in reply acknowledged."
"42. Even if I am wrong in my analysis thus far, per Tiplady v City of Bradford Metropolitan District Council [2020] ICR 965 (in particular at para 45, per Underhill LJ) in order for the claimant to rely upon any less favourable treatment the latter would need to have been suffered by the claimant qua external applicant. In this case, as Mr McCombie submitted, it is clear that neither the alleged disclosure nor the treatment of which complaint was made (both of which the tribunal had been at pains to clarify at the outset of the hearing and to record in its reasons) related to the claimant in that capacity. Mr Jupp's reliance upon paras 76 and 77 of the tribunal's reasons is misplaced; both simply summarise the claimant's submissions. The absence of a cross-appeal does not remove the need for careful analysis of the factual premise of the claim and its relevance to the questions to be addressed in this appeal."
THE APPEAL
(1) in determining that the appellant, as an external applicant for a job, was not in an analogous situation to internal job applicants or applicants for jobs with NHS employers (paragraphs 1 to 3 of the amended grounds of appeal);
(2) in concluding that the appellant did not have some other status within the meaning of Article 14 of the Convention (paragraphs 4 to 6 of the amended grounds of appeal);
(3) in deciding that, if it had not dismissed the other grounds of appeal, it wold have remitted the matter to the employment tribunal to hear further evidence as to proportionality; as the respondent had chosen not to lead evidence as to proportionality, this was inappropriate (paragraph 7 of the amended grounds of appeal);
(4) in concluding that the protected disclosure related to matters unconnected with the appellant's job applications and had been advanced under a complaints policy of which any member of the public was able to avail himself or herself (paragraphs 2 and 6 amended grounds of appeal).
THE FIRST THREE GROUNDS OF APPEAL – ARTICLE 14 OF THE CONVENTION
Submissions
Discussion
The First Issue – Materially Analogous Position
"…not all differences in treatment are relevant for the purposes of Article 14. The difference is only relevant, for the purpose of assessing whether there has been discrimination, if the claimant is comparing himself with others who are in a relevantly similar situation. An assessment of whether situations are "relevantly" similar generally depends on whether there is a material difference between them as regard the aims of the measure in question."
The Second Issue - Status
The Third Issue– Objective Justification
The Proper Approach to Objective Justification in the Present Case
"100. One particularly important factor is the ground of the difference in treatment. In principle, and all other things being equal, the court usually applies a strict review to the reasons advanced in justification of a difference in treatment based on what it has sometimes called "suspect" grounds of discrimination. However, these grounds form a somewhat inexact category, which has developed in the case law over time, and is capable of further development by the European court. Furthermore, a much less intense review may be applied even in relation to some so-called suspect grounds where other factors are present which render a strict approach inappropriate, as some of the cases to be discussed will demonstrate."
"180. As Lord Bingham explained, the degree of respect which the courts should show to primary legislation in this context will depend on the circumstances. Among the relevant factors may be the subject-matter of the legislation, and whether it is relatively recent or dates from an age with different values from the present time. Another factor which may be relevant is whether Parliament can be taken to have made its own judgment of the issues which are relevant to the court's assessment. If so, the court will be more inclined to accept Parliament's decision, out of respect for democratic decision-making on questions of political controversy.
181. In that regard, it is apparent from cases such as Animal Defenders International v United Kingdom (2013) 57 EHRR 21, para 108, and Hirst v United Kingdom (No 2) (2005) 42 EHRR 4, para 79, that the European court takes account of whether the legislature has considered the matters which are relevant to a measure's compatibility with the Convention, although that is by no means determinative of its decision. Since the European court is likely to take that into account, the objective of theHuman Rights Act suggests that domestic courts should do likewise, in order to enable Convention rights to be properly enforced domestically and not only by recourse to Strasbourg."
"182. It is of course true that the relevant question, when considering the compatibility of legislation with Convention rights, is not whether Parliament considered that issue before making the legislation in question, but whether the legislation actually results in a violation of Convention rights. In order to decide that question, however, the courts usually need to decide whether the legislation strikes a reasonable balance between competing interests, or, where the legislation is challenged as discriminatory, whether the difference in treatment has a reasonable justification. If it can be inferred that Parliament formed a judgment that the legislation was appropriate notwithstanding its potential impact upon interests protected by Convention rights, then that may be a relevant factor in the court's assessment, because of the respect which the court will accord to the view of the legislature. If, on the other hand, there is no indication that the issue was considered by Parliament, then that factor will be absent. That absence will not count against upholding the compatibility of the measure: the courts will simply have to consider the issue without that factor being present, but nevertheless paying appropriate respect to the will of Parliament as expressed in the legislation.
183. However, it is important to add two caveats. First, the courts should go no further than ascertaining whether matters relevant to compatibility were raised during the legislative process, if they are to avoid assessing the adequacy or cogency of Parliament's consideration of them, contrary to Lord Nicholls' third principle (in my numbering: para 176 above). The distinction between determining whether, as a question of historical fact, an issue was before Parliament, on the one hand, and determining the cogency of Parliament's evaluation of that issue, on the other hand, is real and must be respected. Undertaking a critical assessment of Parliamentary debates would be contrary to both authority and statute. Furthermore, as I have explained at paras 167–171 above, it would mistake the nature of Parliamentary processes, and create a risk that the courts might undermine Parliament's effectiveness. Trawling through debates should not, therefore, be necessary, and is unlikely to be appropriate: a high level review of whether a topic was raised before Parliament, whether in debate or otherwise, should suffice.
184. Secondly, the courts must not treat the absence or poverty of debate in Parliament as a reason supporting a finding of incompatibility".
The Application of those Principles in the Present Case
"The official reports in recent years into the Zeebrugge ferry disaster, the rail crash at Clapham Junction, the explosion on Piper Alpha and the scandals at BCCI, Maxwell, Barlow Clowes and Barings have all revealed that staff were well aware of the risk of serious physical or financial harm but that they were too scared to raise their concerns or did so in the wrong way or with the wrong person. This culture which encourages decent ordinary citizens to turn a blind eye when then suspect serious malpractice in their workplace, has not only cost lives and ruined livelihoods, but it has damaged public confidence in some of the very organisations on which we all depend."
Conclusion
THE FOURTH GROUND OF APPEAL –DOES THE DETRIMENT CONCERN THE APPELLANT'S APPLICATION FOR EMPLOYMENT?
CONCLUSION
LORD JUSTICE HOLGATE
LORD JUSTICE UNDERHILL