England: Legal challenge to give all job applicants whistleblowing protections

Currently the scope of whistleblowing law does not include people applying for a job, other than job applicants to the NHS who are legally protected by the Employment Rights Act 1996 (ERA 1996) if they make a protected disclosure. Other workers, such as people doing work experience or agency workers, are also protected. 

Because of the lack of legal protections, job applicants who blow the whistle in other sectors risk being blacklisted and can be effectively excluded from the ability to work in their chosen field again. Many potential employers are put off by the knowledge that a particular candidate has reported wrongdoing with a previous employer.

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

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

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

Anna Birtwistle, a partner in the employment team at Farrer & Co, commented: “It has been a privilege to assist Protect on a Pro Bono basis with this third-party intervention, which hopes to assist the Court of Appeal with a technical and complex area of law which has expanded considerably since the ERA was passed in 1996.”

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