Introduction

The case of Sullivan v Isle of Wight Council ([2025] EWCA Civ 379) addresses complex issues arising under the Employment Rights Act 1996 ("ERA"). Central to the dispute is whether the legislative framework protecting individuals who make protected disclosures—specifically workers and NHS job applicants—results in incompatible differential treatment under Article 14 (prohibition of discrimination) read with Article 10 (freedom of expression) of the Convention for the Protection of Human Rights and Fundamental Freedoms.

In this case, Phyllis Sullivan, the appellant, had applied for posts with the Isle of Wight Council and was unsuccessful. Following the interviews and subsequent communications, including complaints regarding alleged discriminatory remarks and financial irregularities connected with the Shanklin Chine Trust, she argued that her protected disclosure should have entitled her to protection even though she was not a “worker” or an NHS job applicant. The judicial challenge raised critical questions on whether the exclusion of general job applicants from the ERA’s whistleblowing protection was justified.

The dispute thus centers on four key issues:

• Whether the appellant’s status as a job applicant is materially analogous to that of workers or NHS job applicants.
• Whether being a job applicant qualifies as an “other status” for purposes of Article 14.
• Whether the difference in treatment between these groups is objectively justified.
• Whether the alleged detriment in this case arose in connection with the applicant’s job application.

Summary of the Judgment

The Employment Tribunal and subsequent Employment Appeal Tribunal (EAT) decisions dismissed the appellant’s claim. The tribunal held that:

• The appellant, being an external job applicant (and not a worker or an NHS applicant), was not in a materially analogous position to the groups that enjoy statutory protection under the ERA.
• Being a job applicant does not constitute a protected “other status” under Article 14, as defined by jurisdictional precedent.
• The legislative framework—extending protection to workers and NHS applicants only—was determined to be objectively justified.
• Moreover, the detriment alleged by the appellant related to her grievance procedure, which did not arise directly “in connection with” her employment application.

On appeal, the Court of Appeal confirmed the lower tribunals’ reasoning, emphasizing that the Legislature’s choices in extending whistleblowing protection to a narrowly defined group were not arbitrary but pursued legitimate public policy aims.

Analysis

Precedents Cited

The judgment makes extensive reference to several precedents which have framed the challenges to differential treatment. Key cases include:

• Gilham v Ministry of Justice (2019) – This decision was pivotal in outlining the four-part test to assess whether differential treatment violates Article 14. The Court in Gilham observed that a valid comparison must involve individuals in “materially analogous” positions.
• Tiplady v City of Bradford Metropolitan District Council [2019] EWCA Civ 2180 & [2020] ICR 965 – These cases help delineate the limits of protection, clarifying that detriments not connected to an employment relationship fall outside the ERA’s scope.
• SC in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 – The proportionality and justification principles set out in this case offer guidance in evaluating whether the legislative approach to differential treatment is compatible with human rights provisions.

The judicial reasoning draws upon these and other authorities to conclude that protection is appropriately circumscribed by the specific context for which it was originally legislated.

Legal Reasoning

The legal reasoning in the judgment is structured around the recognition that statutory provisions in the ERA were intentionally tailored by Parliament. The key points include:

• Material Analogy – The Court found that the appellant’s situation as an external job applicant is fundamentally different from that of workers or NHS job applicants. Workers have a contractual relationship with their employer, granting them certain inherent protections, while NHS applicants are part of a carefully calibrated scheme aimed at ensuring patient safety.
• Status Consideration Under Article 14 – While being a job applicant could arguably constitute an “acquired” status, the judgment noted that the legislative framework instead prioritizes more specific occupational relationships. The analysis highlighted that the designation “other status” historically does not embrace such a broad categorization when juxtaposed with the statutory intent.
• Objective Justification and Proportionality – The court examined whether the exclusion of general job applicants was objectively justified. Relying heavily on parliamentary debates and background material such as the report of Sir Robert Francis QC (the “Freedom to Speak Up” review), the Court concluded that Parliament weighed the need for worker protection and the promotion of public safety (especially in the NHS) more than the rights of job applicants in general. The ruling noted that a proportionality test, even when applied through a multidimensional lens as in Bank Mellat and SC, supports the legislative design.
• Scope of the Detriment – The court also clarified that the alleged detriment (i.e. the refusal of a second-stage complaint review) did not arise directly out of the applicant’s protest of issues occurring during the recruitment process, but rather related to alleged financial irregularities and internal review procedures.

This chain of reasoning leads the court to conclude that the legislative distinctions drawn by Parliament are both legitimate and proportionate.

Impact on Future Cases and Relevant Area of Law

The decision is likely to have significant repercussions in future employment law disputes relating to whistleblowing. Notably:

• Clarification of Protective Boundaries: Future litigants will need to carefully assess whether an individual’s disclosure falls within the narrow definitions of worker or NHS applicant status before alleging differential treatment.
• Legislative Deference: Courts are encouraged to defer to Parliament’s considered choices in delineating the scope of protection, particularly in areas of social and employment policy.
• Review of Procedural Detriments: This case demonstrates that not all detrimental treatment arises in strictly employment-related contexts; the connection between the alleged detriment and the employment application process remains critical.

In effect, the judgment reinforces a narrow but firmly justified reading of the ERA’s provisions on protected disclosures and signals that any attempt to extend protection to all job applicants must overcome significant evidential and doctrinal obstacles.

Complex Concepts Simplified

Several legal concepts in the judgment may appear complex. Below is a simplified explanation:

• Protected Disclosure: This is when a worker or a specially defined applicant, acting in the public interest, reveals information about wrongdoing (such as fraud, criminal offenses, or threats to safety) with the hope of correcting the issue, while being shielded from retaliation.
• Material Analogy: A test that asks whether the person making the disclosure is in a similar enough situation to those given statutory protection (i.e. workers or NHS job applicants) that any disadvantage must be remedied.
• ’Other Status’ Under Article 14: While Article 14 prohibits discrimination on certain grounds (like race or gender), it also covers “other statuses” as long as they are distinguishing personal characteristics. The judgment questions if merely being a job applicant is a status that warrants protection.
• Objective Justification/Proportionality: This is an evaluation of whether the differences in treatment established by legislation are based on reasonable and proportionate responses to genuine policy concerns, even if they limit individual rights.

Conclusion

In summary, the Court of Appeal in Sullivan v Isle of Wight Council has confirmed that the ERA’s provisions, as amended by legislation such as the 2015 Act, were designed with a specific policy rationale—to protect workers and NHS job applicants in the context of whistleblowing. The appellant’s challenge that such a narrow scope amounts to unjustified differential treatment under Article 14 (read with Article 10) was rejected.

Key takeaways include:

• The concept of a “materially analogous position” remains central in deciding who qualifies for protection under employment law.
• Not every group, including general job applicants, possesses a protected “other status” under Article 14 if the legislative purpose targets more precise employment relationships.
• The objective justification for differential treatment relies heavily on public policy considerations, particularly concerning patient safety and whistleblowing efficacy within the NHS.
• Legislative deference is accorded where Parliament makes a policy choice following a considered debate – a principle that will shape future employment discrimination claims.

The judgment firmly upholds the statutory scheme and provides useful guidance for balancing individual rights against the imperatives of public interest and effective policy. This case, therefore, stands as a significant precedent clarifying the limits of whistleblowing protection and the importance of narrowly construed comparative analysis in employment law.