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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Sullivan v Isle of Wight Council (JURISDICTION - EMPLOYEE, WORKER OR SELF-EMPLOYED) [2024] EAT 3 (22 January 2024) URL: http://www.bailii.org/uk/cases/UKEAT/2024/3.html Cite as: [2024] EAT 3, [2024] ICR 561, [2024] WLR(D) 31 |
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 2024] EAT 3 |
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Fetter Lane, London, EC4A 1NL |
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| 2024 |
B e f o r e :
____________________
| MISS P SULLIVAN |
Appellant |
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| - and - |
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| ISLE OF WIGHT COUNCIL |
Respondent |
____________________
FERGUS MCCOMBIE (instructed by Isle of Wight Council) for the Respondent
Hearing date: 04 July 2023
____________________
Crown Copyright ©
SUMMARY
JURISDICTION, EMPLOYEE, WORKER OR SELF-EMPLOYED
The Appellant had presented claims under the Employment Rights Act 1996 ('the ERA') contending that, as a job applicant, she had been subjected to detriments on the ground that she had made protected public interest disclosures. Following a preliminary hearing, the employment tribunal determined that, having regard to the four questions to which the Supreme Court had referred in Gilham v Ministry of Justice [2019] ICR 1655, it lacked jurisdiction to consider those complaints. On appeal, its answers to the second to fourth of those questions were subject to challenge. It was said that the tribunal's findings contravened the Appellant's rights under Articles 10 and 14 ECHR.
Dismissing the appeal, the EAT held that the tribunal had been right to conclude that the Appellant had not been treated less favourably than others in an analogous situation and that external job applicant did not constitute 'some other status' for the purposes of Article 14. Furthermore, the treatment of which the Appellant complained had not been suffered qua external applicant. Whilst, when considering the issue of justification (question four), the tribunal had erred in its approach to proportionality, that error had been of no material effect, having regard to its answers to the second and third Gilham questions. In any event, the Appellant's proposed amendment to section 43K of the ERA, with a view to rendering the statute Convention-compliant, would not have 'gone with the grain' of the legislation and, had the position been otherwise, the nature of any required amendment would have called for legislative deliberation.
THE HONOURABLE MRS JUSTICE ELLENBOGEN DBE:
30 to 55 of its reasons, so far as material to the issues arising on appeal recited below (sic):
'The position of DPSS Account Officer
The position of Direct Payment Finance Officer
The crime report
…
40. Ms Shand wrote to the claimant on 19 February 2020 advising the claimant that as the matter related to employees of the respondent, and in accordance with section 8 of the respondent's complaints policy, it would investigate the matter in accordance with its employee code of conduct utilising the respondent's disciplinary policy and employee conduct procedure. Ms Shand subsequently wrote to the claimant on 2 April 2020 apologising for the delay in concluding the investigation which she attributed to the impact of the covid 19 pandemic on the respondent's resources.
The email dated 17 March 2020
41. The claimant emailed Mr Metcalfe and Ms Shand on 17 March 2020 advising them that she had contacted the CQC and Justin Tomlinson MP and attached copies of her letters. The claimant also stated in her letter that she had attempted to contact the Local Government and Social Care Ombudsman but had been advised that she required a final response from the respondent before being able to progress the complaint...
42. The letter to the MP … is the document which is relied upon by the claimant as her protected public interest disclosure ... In brief, the letter complains about the following matters:- (a) the comments allegedly made by the respondent at the interview/ interviews that the claimant was "apparently 'mentally insane'" together with the claimant's consequential concerns regarding the stigmatisation and treatment of disabled people by the respondent during the recruitment process and (b) the alleged financial irregularities in the operation of the Shanklin Chine Trust and the alleged involvement of one of the respondent's managers, Mr Porter. … The claimant stated that she had sent details of her complaint to the Police and to the respondent.
43. Ms Shand advised the claimant in July 2020 that it would then be possible to recommence the investigation.
The claimant's reports of the interviews of
44. On 13 July 2020 the claimant emailed Ms Shand and Mr Metcalfe attaching what she described as the full reports of the interviews on
45. … The claimant has recorded in the report [of the interview of
46. Ms Shand acknowledged receipt of the reports submitted by the claimant and advised her that they would be passed to the investigating officer. The claimant was advised that as the complaint related to employees of the respondent it would not be possible to inform the claimant of the detailed progress of the investigation or the outcome of any disciplinary action.
The further/ amended reports submitted on 14 July 2020
47. On 14 July 2020 the claimant emailed to Ms Shand her amended reports of the interviews on
48. The claimant's further accounts of the interview on
49. The claimant's detailed accounts of the Interview on 5 December 2019 are at pages … of the bundle. The notes again record details of alleged inappropriate/discriminatory comments/conduct by members of the interview panel. The record includes an allegation that during the course of the interview Mr Higginson banged his hand on the table and said to the claimant that she should "get some contraception" which the claimant speculated in the notes might have been said by him because she had a blemish on her nose.
50. 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 respondent's outcome email dated 18 September 2020
51. Ms Shand emailed the claimant on 18 September 2020 advising the claimant of the outcome of the investigation into her complaints... In summary, …Ms Shand advised the claimant:- (a) that the respondent had concluded its investigation, in accordance with stage one of the respondent's complaints procedure, into the complaint which the claimant had raised with the chief executive concerning the conduct and behaviour of four of its employees (b) summarised the process undertaken including that additional information had been sought from the police regarding the crime reports submitted by the claimant (c) that as advised previously, she was unable to share with her the detailed investigation report as it related to the conduct of employees and was therefore investigated pursuant to the respondent's internal disciplinary procedure (d) assured the claimant that the allegations had been treated very seriously and a thorough investigation undertaken (e) the investigation had however concluded that there was no evidence of any wrongdoing by the members of staff and that her complaint was therefore not upheld (f) if she was dissatisfied with the decision the claimant would normally have the right to refer the matter to a stage 2 review which would be carried out by another senior officer. However, having given the situation very careful consideration Miss Shand had concluded that this would not be an appropriate course of action in the circumstances of the case as a thorough investigation had been undertaken and the process had had a significant impact on the staff involved (g) in the circumstances she considered it necessary to take measures to protect the respondent's employees from any further distress being caused by any further pursuit of the allegations (h) further, as she considered that there was nothing further to be attained by a stage 2 review she was "disapplying that option" in the exceptional circumstances of the case. Accordingly, the claimant had no further option to pursue the complaint pursuant to the respondent's complaints procedure (i) that the respondent did and would continue to treat any complaint against an employee very seriously however unjustified complaints about the same matter would not be investigated further unless they were properly evidenced and substantiated by new information (j) she hoped that the claimant would be assured that the allegations had been taken seriously but also appreciate the importance of the need to protect the well-being of staff. Ms Shand concluded her letter by confirming the claimant's right to complain directly to the Local Government and Social Care Ombudsman ("the Ombudsman") and provided the contact details.
The claimant's complaint to the Local Government and Social Care Ombudsman
52. The claimant submitted a complaint to the Ombudsman on 19 February 2021... In brief summary, the claimant complained about the respondent's refusal to allow her a right of appeal against its complaint response dated 18 September 2020. The claimant stated that she felt that the refusal of the appeal was both discriminatory and due to her raising whistle blowing concerns relating to the Shanklin Chine Trust. The claimant further stated that she had progressed the matter to the Employment Tribunals, the Solicitors Regulation Authority and to the independent office of Police Complaints.
53. The Ombudsman declined to investigate the claimant's complaint on the grounds that it related to a grievance by the claimant relating to two job interviews with the respondent and that it was not allowed as a matter of law to investigate employment related complaints. The Ombudsman's draft decision dated 22 March 2021 is at pages … of the bundle.
54. The claimant subsequently raised concerns relating to the matters raised in the Tribunal proceedings with other public bodies including a complaint to the Solicitors Regulation Authority concerning the alleged conduct of the respondent's solicitor concerning the contents of the respondent's response in the Tribunal proceedings, which complaint was rejected (the email dated 22 April 2021 at pages … of … the bundle).
The respondent's complaints procedure
55. The Tribunal has had regard to the provisions of the respondent's Complaints Policy including in particular:- paragraphs 2, (the definition of a complaint)
'This is a claim for discrimination, victimisation, and whistleblowing on the following:
The Claimant … asserts that the Respondent's refusal of the Claimant's right to a grievance appeal (Claire Shand email to Claimant dated 18.09.2020) was due to the Claimant raising a grievance in relation to detected accounting and taxation irregularities associated with Mr Matthew Porter's (Manager for the Isle of Wight Council) involvement with Shanklin Chine Trust… and Shanklin Chine Limited… under…, the European Convention on Human Rights and the Human Rights Act 1998, the PIDA 1998, ERA 1996…
The Claimant…asserts suffering a detriment by the Respondent due to the Claimant…being perceived as likely to 'blow the whistle' and/or actually having 'blown the whistle'.
…
The Claimant believes that the Respondent would have permitted the Claimant the right to appeal her grievance through the Isle of Wight's grievance channels had the Claimant not raised a complaint which involved whistleblowing…and reported the matter to a regulatory body…and the Police.'
'The issues
12. …
…does the claimant have the necessary status as a job applicant to bring a complaint that she has been subjected to detriments on the grounds that she has made protected public interest disclosures?
13. The claimant accepted that, as a job applicant (and not a worker), she was not, without the assistance of wider statutory interpretation (as referred to further below), entitled to pursue a claim for protected public interest disclosure detriment pursuant to sections 47B(1)/48 of the Employment Rights Act 1996 ("the Act").
14. The claimant further confirmed that she accepted that for the purposes of section 49B of the Act (which section affords protection to applicants for employment in the health service from detriment for making protected public interest disclosures), that the respondent is not included in the list of NHS Employers/Public Bodies for the purposes of section 49B(6)/(7)(a) – (p) of the Act.
15. The claimant's position in summary, is however that: -
(1) The provisions of section 47B(1)/48 of the Act, should be extended/interpreted to include job applicants by reason of: - (a) … and/or (b) Articles 10 and 14 of the European Convention of Human Rights and/or the Human Rights Act 1998 and/or … the judgment of the Supreme Court in Gilham v Ministry of Justice.
(2) … the provisions of section 49B(7) should in any event be extended/interpreted to include the respondent in the light of the wider provisions referred to in paragraph (1) above.
16. The respondent's position continues to be however that: -
(1) The provisions of section 47B(1)/48 and/or 49B of the Act are clear and unequivocal. They do not provide any protection to the claimant who was a job applicant (not a worker) for employment (in financial roles) with the respondent. Moreover, the respondent was/is not a designated NHS Employer/NHS Public body for the purposes of section 49B of the Act and the claimant cannot therefore rely upon such provisions.
(2) Further, the relevant statutory provisions are not capable of being extended interpretated pursuant to any EU Directive (insofar as it is in any event of any relevance/ongoing application) and/or Human Rights provisions and/or… any other authorities such as to bring the claimant within such protections.'
18. The Tribunal clarified with the claimant her position in the light, in particular, of paragraphs 10-12 of her written submissions. After further discussion during the Preliminary hearing (including an explanation from the Tribunal that any disclosure would for the purposes of causation have to predate any alleged detrimental (bad) treatment, the claimant clarified her position with regard to her protected public interest disclosure claim as follows:
(1) The claimant confirmed (having acknowledged that any remaining alleged disclosures identified at paragraph 10 of her written closing submissions were made after the alleged detrimental treatment relied upon (i.e. the refusal of Ms Shand on 18 September 2020 to permit the claimant to pursue an appeal against the rejection of her complaint regarding the conduct of the interviews in November and December 2019 pursuant to the respondent's complaint's policy) that the only alleged disclosure upon which she relied was contained in the letter to Mr Justin Tomlinson MP dated 17 March 2020 (section C - pages 19 and 22-23 of the bundle). The claimant also contends however, that this disclosure was copied to the respondent - the Chief Executive of the respondent - Mr J Metcalfe and/or Ms Shand on 17 March 2020 (…). The claimant therefore relies on sections 43 C and /or 43 F of the Act in respect of such alleged disclosure.
(2) Whilst the main focus of the claimant's letter to the MP dated 17 March 2020 (…) related to the alleged conduct of the respondent during the interviews (including that the claimant had allegedly been described during the interview(s) as "mentally insane"), the letter also referred to alleged financial irregularities. The claimant's alleged disclosure relates to the alleged activities of a man[a]ger in the respondent, Mr M Porter, (who was also a member of the interview panels) regarding the operation of a charitable trust and the alleged failure to submit to companies house truthful accounts of trading revenue received.
(
(4) The claimant identified three detriments upon which she relied at paragraph 11 of her written submissions (the rejection on 4 November 2019 and 10 December 2019 of applications for employment and the refusal on 18 September 2020 of a right of appeal against the rejection of her subsequent complaint regarding the conduct of the interviews for such positions).
(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 of appeal against the rejection of her complaint pursuant to the respondent's complaints procedure.'
'Issue 1 1.1 (b) whether the claimant is, in any event, able to establish worker/ the necessary status by virtue of the application (for the purposes of section 47B / 48 (1) and/or 49 B of the Act) of the European Convention on Human Rights and/or the Human Rights Act 1998 ("the 1998 Act") and /or the Enterprise and Regulatory Reform Act 2013.
The relevant law
75. The Tribunal has had regard to the legal provisions referred to above (including in particular Articles 10 (freedom of expression) and 14 (prohibition of discrimination) of the Convention Rights contained in … Schedule 1 to the 1998 Act together with the judgment of the Supreme Court in Gilham v Ministry of Justice [2019] UKSC 44.
Submissions
76. In summary, the claimant contends that:- (a) the Tribunal is required, pursuant to section
77. The claimant further contends that the Tribunal is required to consider the four questions identified in Gilham as follows:- (i) do the facts fall within the ambit of one of the Convention rights – the claimant contends that they fall within the ambit of the right to freedom of expression protected by Article 10(ii). Has the claimant been treated less favourably than others in an analogous situation - the claimant contends that job applicants have been denied protection in comparison to others who make responsible public interest disclosures within the requirements of the Act. (iii) Is the reason for that less favourable treatment one of the listed grounds (in Article 14) or other status – the claimant contends that a job applicant is an occupational classification which is clearly capable of being a status within the meaning of Article 14 and (iv) – is that difference without reasonable justification – the claimant contends that there is no justifiable reason for falling to afford protection to job applicants (including as for the purposes of section 49B local authorities also recruit/employ staff who care for vulnerable people) and such exclusion must therefore be a breach of Articles 10 and 14 of her Convention rights.
78. In summary, the respondent's primary position is that there is no scope for extending whistleblowing protection to applicants, as opposed to office holders, by using human rights law. Further, Parliament has already considered the position of applicants and has chosen not to extend the NHS employer protection to other applicants for employment. In respect of Gilham the respondent contends in particular as follows:- (a) "job applicants" do not have "other status" for the purposes of Article 14, if it was extended in that way it would apply to anyone who applies for a job whereas officer holders (as in Gilham) do have such status and (b) Parliament has already considered "job applicants" as a category for whistleblowing protection but has chosen to limit the protection to those working in the NHS by way of section 49B of the Act. There is reasonable justification for the decision to limit the extension of the protection to the NHS field as the NHS is a large employer with responsibility for patient safety and staff regularly move between NHS trusts (c) further a distinction should be drawn between this case and the situation in Gilham as for the purposes of remedy judicial officer holders such as Gilham readily fit within the worker relationship whereas job applicants do not have any such relationship and (d) as far as the claimant's contentions regarding section 49(B) of the Act are concerned there is no justification for extending the section as contended by the claimant – the section carefully identifies which bodies are deemed to be NHS employers which definition is too tightly defined for any extension on Human rights grounds and (e) the respondent also relies, for the purposes of interpretation, on paragraph 16 of the
The conclusions of the Tribunal
79. Having given careful consideration to all of the above, including that the Tribunal is required pursuant to section
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 Articles 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 [in]to 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 the 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 paragraph (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 43 K 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 grounds of appeal
a. (ground one) in its consideration of whether the Claimant, as a job applicant, had been treated less favourably than others in an analogous situation, for the purposes of Article 14 ECHR;
b. (ground two) in failing to have found that the Claimant had had 'some other status', as required by Article 14 ECHR; and
c. (ground three) in its determination that the exclusion of job applicants from protection under Part IVA of the Employment Rights Act 1996 ('the ERA') had been a proportionate means of achieving a legitimate aim (having failed to identify the latter).
The parties' submissions
For the Claimant
3 of the Human Rights Act 1998 ('the HRA'), the EAT was under a duty to give effect to her right not to be discriminated against contrary to Article 14 in respect of Article 10 ECHR. He submitted that, unless that proposition went against the grain of the ERA, the EAT was bound to construe that Act so as to give effect to her Convention rights. It was acknowledged that that would require the EAT to read in words which were not present, a permissible approach: see Ghaidan v Godin-Mendoza [2004] 2 AC 557, HL. The Employment Rights Act 1996 (NHS Recruitment — Protected Disclosure) Regulations 2018/579 ('the NHS Regulations') conferred upon an applicant (as defined by section 49B(2) of the ERA) a right of complaint against an NHS employer. In so doing, they extended the provision made by the ERA, indicating that the extension sought by the Claimant in this case did not go against the grain of the ERA, or of the NHS Regulations, that is it would not contravene the policy objectives of either piece of legislation. In Mr Jupp's submission, the objective of the ERA was to afford protection to whistleblowers in the workplace sphere or environment. Extending protection to job applicants would be consistent with that objective. Employment protection legislation in other areas had not excluded applicants for all purposes; the Equality Act 2010 was an example. One could readily see how a protected disclosure under section 43B of the ERA could also constitute a protected act for the purposes of section 27 of the Equality Act 2010 (victimisation). It was incongruous that an internal job applicant would be protected under both statutes, but an external applicant under only the latter. To go against the grain would be to extend protection to any member of the general public.
EAT could only speculate. Whilst it might be possible to identify the aim from the statute itself, the Tribunal had not done so. Further, the burden was on a respondent to establish proportionality. It was apparent from the Parliamentary debate which had related to extension of protection to NHS applicants that the door had been left open to a further extension for which Parliament had lacked the evidence base at that time. The purpose of drawing the EAT's attention to that material was twofold: to indicate that the legitimate aim advanced by the Respondent (that it was inappropriate to open the floodgates to an unlimited category of job applicants and potential job applicants) was wrong; and to illustrate the extent of the matters which would need to be considered before a conclusion on proportionality could be reached; a matter which was not within the remit of the EAT and which would require evidence to be produced and considered. As the Respondent had elected not to call such evidence, the Tribunal had been in no position to conclude that the means of achieving any legitimate aim had been proportionate. In the alternative, the fourth question in Gilham would need to be remitted for consideration afresh.
EAT to accept the above submissions, the Claimant's preferred remedy would be the amendment of section 43K of the ERA to include an additional subsection:
(1) For the purposes of this Part "worker" includes an individual who is not a worker as defined by section 230(
…
(e) applies for employment and who, if they were successful in that application, would be a worker within section 230(
For the Respondent
3) of the Tribunal's reasons (see above) had made clear.
EAT was being asked to extend protection to individuals who had at one time applied for employment, been rejected and then gone through a process independent of the job application process. Whilst it was not submitted that the Claimant lacked locus to advance the submissions made, consideration of analogous circumstances and 'other status' ought to be heavily influenced by the factual matrix. In addressing the boundaries of any arguable extension of protection to applicants for employment, the EAT would have to consider status and analogous circumstances by reference to the facts as found and, it was submitted, this was not the case in which to decide the issues raised. This Claimant's position was analogous to that of any other member of the public who complained about any aspect of the Respondent's conduct and, thus, there was no analogy established with the groups upon which she relied. It was for that reason that the Respondent placed so much emphasis on the work relationship as being the relevant criterion.
3, Parliamentary statements by ministers were not relevant to construing legislation, whilst explanatory memoranda were. A boundary had been drawn around avoiding detriment based upon workplace complaints rather than upon something arising outside the workplace by which a member of the public or user of the service was aggrieved. The appropriate comparison was between those who had a workplace relationship and those who had not. It would not do to define a sub-set of job applicants, such as those who applied from within the organisation. The expansion of protection through caselaw such as Woodward had related to those who had previously had a relationship which had ended. Gilham was an exception but, nevertheless, questions of status, analogous circumstances and justification had been answered by reference to the claimant's occupational status as someone present in workplace. The distinction was between presence in and absence from the workplace; between those who were protected by the legislation and those who were not. The protection envisaged by the ERA had been made clear in caselaw, and in the explanatory memorandum to the NHS Regulations. In none of the material to which it was proper to have regard had Parliament indicated an intention to expand protection to job applicants in general. A line had been drawn, subject to piecemeal extension in the NHS. It was open to the EAT to discern the legitimate aim from the legislation and explanatory memoranda. The EAT could also decide the issue of proportionality on the available material. It was for the Claimant to identify an error of law in the Tribunal's consideration of justification. None had been demonstrated and it was inappropriate for the Claimant to rely on new material in the form of Hansard, from which, in any event, it was very clear that the Government had wished to adopt an evidence-based approach. The Tribunal had made a finding of fact, adopting the correct approach and any assertion to the contrary was of perversity, which had not been the basis of the Claimant's appeal. Contrary to the position in Gilham, in this case submissions had been made regarding Parliament's considered opinion, by reference to the text of the ERA and the amendments to protection which had been made and the question was whether the Tribunal had been justified in reaching a conclusion on that basis. Whether or not Parliament had referred to proportionality and human rights was irrelevant if the measures adopted were in fact proportionate in pursuit of a legitimate aim. In the alternative, the issue of justification would need to be remitted for consideration by the Tribunal, subject to which question the EAT could give guidance as to whether the ERA ought to be amended.
For the Claimant in reply
39 [77] and, accordingly, had been led into speculation. The EAT would not itself be in a position to address that test on the material available and, if it considered the Respondent not to be shut out from arguing it, that matter should be remitted for consideration by a different employment tribunal, with an invitation extended to the Secretary of State to join the proceedings.
Discussion and conclusions
'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.'
3(1) of the HRA, so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. The compatibility of legislation with such rights falls to be assessed when the issue arises for determination, not as at the date when the legislation was enacted, or came into force: Wilson v First County Trust Ltd (No. 2) [2004] 1 AC 816 [62]. In Ghaidan, Lord Nicholls held ([32] and [33]):
'
At paragraph 121, Lord Rodger held:
'121. For present purposes, it is sufficient to notice that cases such as Pickstone v Freemans plc and Litster v Forth Dry Dock & Engineering Co Ltd suggest that, in terms of section
a. 43A. Meaning of "protected disclosure"
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.
b. 43K. Extension of meaning of "worker" etc for Part IVA
(1) For the purposes of this Part "worker" includes an individual who is not a worker as defined by section 230(
(a) works or worked for a person in circumstances in which—
(i) he is or was introduced or supplied to do that work by a third person, and
(ii) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them,
(b) contracts or contracted with a person, for the purposes of that person's business, for the execution of work to be done in a place not under the control or management of that person and would fall within section 230(
(ba) works or worked as a person performing services under a contract entered into by him with NHS England under section 83(2), 84, 92, 100, 107, 115(4), 117 or 134 of, or Schedule 12 to, the National Health Service Act 2006 or with a Local Health Board under section 41(2)(b), 42, 50, 57, 64 or 92 of, or Schedule 7 to, the National Health Service (Wales) Act 2006,
(bb) works or worked as a person performing services under a contract entered into by him with a Health Board under section 17J or 17Q of the National Health Service (Scotland) Act 1978,
(c) works or worked as a person providing services in accordance with arrangements made—
(i) by NHS England under section 126 of the National Health Service Act 2006, or Local Health Board under section 71 or 80 of the National Health Service (Wales) Act 2006, or
(ii) by a Health Board under section 2C, 17AA, 17C, 25, 26 or 27 of the National Health Service (Scotland) Act 1978, or
(cb) is or was provided with work experience provided pursuant to a course of education or training approved by, or under arrangements with, the Nursing and Midwifery Council in accordance with article 15(6)(a) of the Nursing and Midwifery Order 2001 (S.I. 2002/253), or
(d) is or was provided with work experience provided pursuant to a training course or programme or with training for employment (or with both) otherwise than—
(i) under a contract of employment, or
(ii) by an educational establishment on a course run by that establishment;
and any reference to a worker's contract, to employment or to a worker being " employed" shall be construed accordingly.
(2) For the purposes of this Part "employer" includes—
(a) in relation to a worker falling within paragraph (a) of subsection (1), the person who substantially determines or determined the terms on which he is or was engaged,
(aa) in relation to a worker falling within paragraph (ba) of that subsection, NHS England, or the Local Health Board referred to in that paragraph,
(ab) in relation to a worker falling within paragraph (bb) of that subsection, the Health Board referred to in that paragraph,
(b) in relation to a worker falling within paragraph (c) of that subsection, NHS England or the board referred to in that paragraph, and
(c) in relation to a worker falling within paragraph (cb) or (d) of that subsection, the person providing the work experience or training.
(
(4) The Secretary of State may by order make amendments to this section as to what individuals count as "workers" for the purposes of this Part (despite not being within the definition in section 230(
(5) An order under subsection (4) may not make an amendment that has the effect of removing a category of individual unless the Secretary of State is satisfied that there are no longer any individuals in that category.
c. 230 Employees, workers etc
…
(
(a) a contract of employment, or
(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or personally perform any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;
and any reference to a worker's contract shall be construed accordingly.
(4) In this Act "employer", in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.
(5) In this Act "employment"—
(a) in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and
(b) in relation to a worker, means employment under his contract;
and "employed" shall be construed accordingly.
(6) This section has effect subject to sections 43K 47B (
30] and [31] (with emphasis added):
'
30 of Lady Hale's judgment which I have emphasised above was apt. I accept Mr McCombie's submission that the external job applicant is not in a situation analogous to that of the internal applicant, who is already embedded in the workplace and whose disclosure is made in that context. That is not to fall foul of the analysis in paragraph 31 of Gilham; it is the external job applicant's lack of existing working relationship with the putative employer which means that his or her situation is not analogous to that of the internal job applicant. The internal applicant does not derive protection from his or her status as such, which is a matter of irrelevance. Entitlement to statutory protection derives from his or her status as a worker in the existing role. So viewed, the external applicant's situation is not analogous.
3) of the Tribunal's reasons, had related to matters unconnected with the application made, or, indeed, with the Respondent itself, and had been advanced under a complaints policy of which any member of the public was able to avail himself or herself in relation to any perceived wrongdoing by the Respondent.
a.
An NHS employer must not discriminate against an applicant because it appears to the NHS employer that the applicant has made a protected disclosure.
b. 4. Right of complaint to an employment tribunal
(1) An applicant has a right of complaint to an employment tribunal against an NHS employer if the NHS employer contravenes regulation
(2) If there are facts from which the employment tribunal could decide, in the absence of any other explanation, that an NHS employer contravened regulation
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.
(
(4) Regulations under this section may, in particular —
(a) make provision as to circumstances in which discrimination by a worker or agent of an NHS employer is to be treated, for the purposes of the regulations, as discrimination by the NHS employer;
(b) confer jurisdiction (including exclusive jurisdiction) on employment tribunals or the Employment Appeal Tribunal;
(c) make provision for or about the grant or enforcement of specified remedies by a court or tribunal;
(d) make provision for the making of awards of compensation calculated in accordance with the regulations;
(e) make different provision for different cases or circumstances;
(f) make incidental or consequential provision, including incidental or consequential provision amending —
(i) an Act of Parliament (including this Act),
…
(iv) an instrument made under an Act or Measure within any of sub-paragraphs (i) to (iii)
(5)…
(6) "NHS employer" means an NHS public body prescribed by regulations under this section.
(7) "NHS public body" means —
(a) NHS England;
(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) [repealed]
(h) the Health Research Authority;
(i) [repealed]
(j) the National Institute for Health and Care Excellence;
(k) [repealed]
(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.
(8)…
(9)…
(10) For the purposes of subsection (4)(a) —
(a) "worker" has the extended meaning given by section 43K, and
(b) a person is a worker of an NHS employer if the NHS employer is an employer in relation to the person within the extended meaning given by that section.
Section 49C, as yet not in force, makes similar provision for the Secretary of State to make regulations prohibiting a 'relevant employer' from discriminating against an applicant for a children's social care position because it appears to the employer that the applicant has made a protected disclosure. A children's social care position is defined to mean a position in which the work done relates to the children's social care functions of a relevant employer. It is convenient, at this point, to note that section 49B(3) provides that the proscribed discrimination must be constituted in refusal of the application or other less favourable treatment by comparison with other applicants in relation to the same contract, office or post.
37. The basis upon which the, then proposed, extension of protection to whistleblowing job applicants was restricted to those in the NHS emerges clearly from Hansard (11 March 2015). Baroness Neville-Rolfe noted that the Government was taking action in the wake of the reports, produced following, respectively, (1) the Mid-Staffordshire NHS Foundation Trust public inquiry, led by Sir Robert Francis KC, and (2) an independent investigation into the management, delivery and outcomes of care provided by the maternity and neonatal services at the University Hospitals of Morecambe Bay NHS Foundation Trust from January 2004 to June 2013, by Dr Bill Kirkup CBE. She noted that the extension of protection to applicants in other sectors had been debated at Committee stage, but that her concern had been as to the lack of evidence of a widespread problem right across the board, or, for other sectors, of the nature of the gap or scale of the problem. Broader amendment would apply to the private sector and the coverage would be very wide-ranging. It was necessary to legislate in an informed and evidence-based way. On 1 May 2018, a motion to approve the draft NHS Regulations was moved in the House of Lords by Baroness Manzoor, who stated, 'On the issue of culture, the whole point from the Government's perspective is that we need to ensure that the culture within the NHS is changed so that those people who want to highlight poor practice in the NHS, who are concerned about patient safety, have the right to speak up. It is very important that their rights are protected. Should they wish to move to a new employer, the regulations will help to safeguard them. Paramount is patient safety, and the regulations will go some way to addressing those issues…we want an NHS where lessons are learned to provide the safest possible care for patients. This is what it is about: actually changing the culture…'
35]:
'The courts will always, of course, recognise that sometimes difficult choices have to be made between the rights of the individual and the needs of society and that they may have to defer to the considered opinion of the elected decision-maker: see R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC
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 [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).'
a. Having regard to the dicta in Ghaidan, set out at paragraph 27 above, I have concluded that it would not have gone with the grain of the ERA, but would have constituted an amendment which it would have been for Parliament, and not for the courts, to have made. The question is not merely one of language; as is clear from the legislative scheme, there has been a clear decision taken to exclude job applicants from the protection conferred on whistleblowers by the ERA. The NHS Regulations do not, as Mr Jupp submits, themselves serve to indicate that the amended wording which he proposes would go with the grain of the ERA — quite the opposite; they derive from the provision made by section 49B of the latter, which allows a limited exception to the general rule. The same will be true of section 49C, when in force. A broader exception of the nature which Mr Jupp urges would run entirely contrary to the scheme of the legislation. I do not accept that assistance may be derived from caselaw such as Woodward, in which it was held that the ERA prohibited detriment suffered post-termination, but the ratio of which was firmly rooted in the prior existence of the workplace relationship. Nor, in my judgement, does the fact that the protection conferred by a different statute — the Equality Act 2010 — is differently framed in certain respects assist the Claimant. Consistent with the dicta of Underhill LJ in Tiplady [44], the differences reflect the legislative choice to afford whistleblowing protection only as between worker and employer and it is the grain of the legislation which is said to require amendment with which I am concerned.
b. Furthermore, and had I considered the position to be otherwise than I have found it to be, I am satisfied that there is more than one way in which (on that hypothesis) the ERA could have been rendered Convention-compliant, involving issues calling for legislative deliberation. Here again, the Claimant's own circumstances afford a case in point — the fact that she had been an applicant for a job at one time, but that her disclosure and allegedly less favourable treatment had related to unconnected matters, illustrates the need for careful thought and draftsmanship.
Disposal