Factual and Procedural Background
The appeal concerns provisions of the Employment Rights Act 1996 ("ERA") protecting workers who make protected disclosures from detriment. The appellant applied unsuccessfully for posts with the respondent, a local council, and subsequently made a protected disclosure by letter to her Member of Parliament alleging misconduct related to the interview process and a charitable trust connected to a panel member. The respondent investigated and found the complaint unsubstantiated but refused the appellant a further review stage under its complaints policy, which the appellant claimed was a detriment due to her protected disclosure. The appellant was not a worker under ERA nor an applicant for an NHS post, and therefore not entitled to statutory protection. The employment tribunal dismissed her claim, finding she was not in an analogous position to protected groups, and that any differential treatment was objectively justified. The Employment Appeal Tribunal ("EAT") upheld the dismissal, adding that the protected disclosure related to matters unconnected with the job application. The appellant appealed further, challenging the tribunal and EAT's conclusions on analogous position, status under Article 14 of the Convention, objective justification, and the connection of the detriment to her job application.
Legal Issues Presented
- Is the appellant in a materially analogous position to (a) workers or (b) applicants for posts with NHS employers?
- Does being a job applicant amount to a status for the purpose of Article 14 of the Convention?
- Is the difference in treatment arising out of the relevant statutory provisions objectively justifiable?
- Was the disclosure related to the appellant's application for employment?
Arguments of the Parties
Appellant's Arguments
- The appellant contended that the ERA provisions must be read to include job applicants generally to avoid incompatibility with Article 14 of the Convention.
- She argued that she was in a materially analogous position to internal applicants and NHS applicants, as both apply and attend interviews similarly.
- It was submitted that being embedded in the workplace was not determinative, citing case law where former employees or officeholders had protection.
- The appellant asserted that being a job applicant constitutes "other status" under Article 14, as status includes characteristics arising from personal actions.
- Regarding justification, it was argued that the respondent failed to prove the legislation’s difference in treatment was objectively justified, especially given the absence of evidence on proportionality.
- The appellant further submitted that the legislation did not strike a fair balance and left job applicants vulnerable to detriment during recruitment.
Respondent's Arguments
- The respondent argued the appellant was not in an analogous position to workers or NHS applicants, lacking a workplace relationship.
- It was submitted that being a job applicant is too generic to constitute a status under Article 14, aligning with Supreme Court guidance emphasizing occupational classification.
- Parliament’s deliberate choice to limit protection to workers and NHS applicants was said to render the legislation proportionate and objectively justified.
Secretary of State for Business and Trade's Arguments
- The Secretary of State submitted the legislation’s aim is to protect the public by safeguarding workers who can raise concerns internally.
- The extension to NHS applicants addressed a specific patient safety issue within the NHS’s national structure.
- Job applicants generally were not materially analogous to workers or NHS applicants, and the legislation’s differential treatment was proportionate.
- It was emphasized that being a job applicant is not a status under Article 14, and the legislation pursues a legitimate aim with appropriate means.
Second Intervener (Protect) Arguments
- The intervener made submissions on the interpretation of ERA provisions, supporting the appellant’s position on extending protection.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Gilham v Ministry of Justice [2019] UKSC 44 |
Framework for assessing Article 14 claims, including analogous situations and objective justification. |
Used as a key authority for the four-part test under Article 14 and to compare the appellant’s position with protected groups. |
| Tiplady v City of Bradford Metropolitan District Council [2019] EWCA Civ 2180 |
Limits protection to detriments suffered in employment capacity under ERA. |
Applied to reject the claim that detriment unrelated to employment relationship was protected. |
| Woodward v Abbey National plc (No 1) [2006] EWCA Civ 822 |
Protection under ERA can extend to former employees. |
Supported argument that workplace presence is not essential for protection. |
| BP plc v Elstone [2010] ICR 879 |
Claims can relate to disclosures made during previous employment with different employer. |
Reinforced that protection extends beyond current workplace presence. |
| Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 |
Test for proportionality and objective justification in human rights cases. |
Discussed as a possible approach but ultimately the court preferred the nuanced approach in SC. |
| R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26 |
Approach to objective justification for social and economic policy legislation. |
Adopted as the appropriate framework for assessing justification in this case. |
| Clift v United Kingdom (2010) 51 EHRR 3 |
Definition of "other status" under Article 14 includes identifiable personal characteristics. |
Used to consider whether being a job applicant qualifies as a status. |
| Carson v United Kingdom (2010) 51 EHRR 3 |
Recognition that status may include characteristics such as country of residence. |
Supported broad interpretation of "other status". |
| R (Stott) v Secretary of State for Justice [2018] UKSC 59 |
Interpretation of "other status" in Article 14 and personal characteristics. |
Confirmed a generous but not unlimited meaning of status including acquired characteristics. |
| R (A) v Criminal Injuries Compensation Authority [2021] UKSC 27 |
Acquired characteristics can constitute status under Article 14. |
Supported that status need not be innate but can be acquired by events or choices. |
| Wilson v First County Trust Ltd (No.2) [2003] UKHL 40 |
Use of Parliamentary statements as background material for statutory interpretation. |
Guided caution in using Parliamentary debates to determine legislative intent. |
| Animal Defenders International v United Kingdom (2013) 57 EHRR 21 |
Respect for Parliamentary consideration in assessing Convention compatibility. |
Supported deference to Parliament’s judgment on social policy matters. |
| Hirst v United Kingdom (No 2) (2005) 42 EHRR 4 |
Consideration of Parliamentary deliberation in human rights compatibility. |
Reinforced respect for Parliamentary decisions in Convention assessments. |
Court's Reasoning and Analysis
The court applied the four-part test derived from Article 14 and Gilham: whether the claim falls within the ambit of a Convention right, whether the claimant is in an analogous situation to those protected, whether the difference in treatment is based on a status, and whether it is objectively justified.
It accepted the complaint fell within the ambit of Article 10 (freedom of expression) and Article 14 (prohibition of discrimination). The court found the appellant was not in a materially analogous position to workers or NHS job applicants, as applicants for jobs generally lack an employment relationship and the specific NHS context relates to patient safety concerns unique to that sector. The appellant's position as an external job applicant without a contractual relationship was materially different.
The court recognized that being a job applicant can amount to "other status" under Article 14, given its acquired and distinguishing nature.
Regarding objective justification, the court gave substantial weight to Parliament’s considered decision to protect workers and NHS applicants but not other job applicants. Parliamentary debates and rejected amendments supported this. The legislation pursues a legitimate aim of protecting public interest by safeguarding disclosures from those embedded in the workforce or NHS applicants to maintain patient safety. The means adopted were proportionate and not disproportionate, with no requirement to protect all job applicants.
The court rejected the appellant’s argument that the absence of evidence on proportionality undermined justification, noting that primary legislation challenges are generally resolved by statutory interpretation and consideration of Parliamentary intent.
Finally, the court held the detriment alleged related to a complaint about financial irregularities unconnected with the appellant’s job application or employment relationship, and thus not covered by the statutory protections.
Holding and Implications
The court's final decision is to DISMISS THE APPEAL.
The legislation under the Employment Rights Act 1996 is compatible with Article 14 read with Article 10 of the Convention. The appellant, as a general job applicant, is not in a materially analogous position to workers or NHS job applicants, and the differential treatment is objectively justified based on Parliament’s legitimate aim and considered legislative choices. The detriment complained of did not relate to the appellant’s job application and thus falls outside the scope of statutory protection. No new precedent was established beyond reaffirming the scope and justification of the legislative provisions.