I wonder if job applicants are protected by whistleblowing legislation?

Whistleblowing is defined as “the act of an employee or worker making a qualifying disclosure, which they reasonably believe is in the public interest, to an employer, responsible person, legal adviser, government minister or other prescribed person”. In the UK, employees who are whistleblowers receive certain protections, which aim to protect employees who disclose intimate information during their employment, and ensure they are not victimised for it.

However, whistleblowing legislation only concerns those who are employees and workers, so what protections do job applicants have? In this article, we will look into job applicant protections and where the exceptions lie.

Whistleblowing Legislation

The leading legislation for whistleblowing protection is the Public Interest Disclosure Act 1998 (PIDA) which ensures that individuals who report concerns about malpractice are protected from retaliatory actions. Under PIDA, workers can raise concerns about a range of issues, including:

• Criminal offences;
• Health and safety risks;
• Environmental damage;
• Miscarriages of justice;
• Breaches of legal obligations; and
• Cover-ups of any of the above.

Additionally, sections 43A and 43B of the Employment Rights Act (ERA) 1996 state that whistleblowing is a protected disclosure, meaning that a worker or employee cannot suffer any detriment for ‘blowing the whistle’. PIDA and the Enterprise and Regulatory Reform Act 2013 have further clarified the scope of protection, and emphasise the need for disclosures to be made in the public interest.

Protection of Job Applicants

When considering job applicants, legislation does not extend its protection to applicants and therefore they are not protected under whistleblowing law. This causes a legal grey area for whistleblowers who disclose information during the application process, as they may not be shielded by the same legal safeguards as workers. Consequently, if you are rejected for a job because you blew the whistle, it is unlikely you will receive a remedy in an employment tribunal.

Despite legislation not explicitly protecting job applicants, certain legal principles and broader anti-discrimination policies may offer some protection to an extent. For example, if a job applicant faces detrimental treatment due to whistleblowing activities, they could argue it constitutes discrimination under the Equality Act 2010. This Act protects those from discrimination based on protected characteristics.

There is little case law on whistleblowing and the protections that legislation gives, however the case of Sullivan v Isle of Wight Council was a pivotal case regarding job applicants. Miss Sullivan brought a claim for discrimination on the grounds of a protected disclosure to the Employment Tribunal (ET). Miss Sullivan attempted to rely on the case of Gilham v Ministry of Justice, in which the Supreme Court confirmed that whistleblowing protection extended to office holders as well as employees and workers under Articles 10 and 14 of the European Convention of Human Rights (ECHR).  The ET decided that Miss Sullivan’s status as a job applicant shared no similarity to an existing worker or employee, and therefore was not entitled to whistleblower protection under the ECHR. She then appealed to the Employment Appeal Tribunal (EAT), however this was dismissed. For further information on this case please see our Employment Newsletter here.

The Exception: NHS Employees

Whilst PIDA lacks whistleblowing protection for job applicants, an NHS employee must not discriminate against a job applicant because they ‘blew the whistle’ at a previous job. The Employment Rights Act 1996 (NHS Recruitment – Protected Disclosure) Regulations 2018, section 3 states that “an NHS employer must not discriminate against an applicant because it appears to the NHS employer that the applicant has made a protected disclosure.” These measures ensure that those applying for positions within the NHS can report concerns about malpractice or patient safety without fear of discrimination, and protects those who are acting in the public interest.

Future Directions

Excluding job applicants from whistleblowing protection creates policy issues. It creates a disincentive for individuals wanting to report a wrongdoing during their application, therefore there is a possibility of allowing malpractice to go unchallenged. Not only for those job applicants, but this may have a knock-on effect to those in the business who work under such conditions, especially if it was a safety breach the applicant was reporting on, or the reputation of the business as a whole. This gap in legislation undermines the broader purpose of whistleblowing legislation.

To address this, policymakers could consider amending PIDA, extending its protection to those seeking employment as well as employees. This would ensure transparency and accountability throughout all stages of the employment process. It would also give whistleblowers the best possible support during the process. The Whistleblowing charity, Protect, asks for three urgent reforms to PIDA, which are:

• Protection of more people;
• Standards for employers; and
• Better access to justice for whistleblowers.

Protect has released a draft Whistleblowing Bill, which you can access on the Protect website here.

Conclusion

Whilst whistleblowing legislation provides substantial protection for current employees and workers, it does not extend this protection to job applicants. This may pose as a deterrent for individuals who wish to disclose wrongdoings or malpractice during the job application process. As discussed, this may have significant knock-on effects to others beyond the immediate applicant. Whilst alternate remedies may be possible, they are not straightforward or necessarily rewarding. To fully realise the full benefits of whistleblowing protection, legislative reforms may be necessary to include job applicants.

If you have any questions about whistleblowing, our Peace of Mind Team can provide specific advice and our Document Audit Team can help draft relevant policies. Contact our employment law team by emailing employment@warnergoodman.co.uk or by calling 023 8071 7717.