Can external candidates be whistleblowers?

In years gone by, those brave enough to blow the whistle on errant employers often found themselves the subject of victimisation up to and including dismissal, and in order that this did not become a deterrent to such disclosures, protection for whistleblowers has been set out in law.  

The law on whistleblowing can be found in the Employment Rights Act 1996 (with subsequent amendments in the Public Interest Disclosure Act 1998).  

It means that a worker has the right to take their case to an employment tribunal if they believe that they’ve been victimised at work or if they’ve lost their job because of a disclosure they’ve made.   

Prescribed persons   

In an ideal world, a worker will feel confident that if they make a disclosure to their organisation, it will be taken seriously and acted upon. Policies and procedures for handling such disclosures will certainly strengthen such confidence. However, it’s not always an ideal world and there may well be instances where – for whatever reasons – a worker doesn’t feel confident making their disclosure internally.  

Therefore, the law sets out a range of options for workers to use in these circumstances. One of those choices is to use a prescribed person; those are regulators and professional bodies as well as others such as MPs. The prescribed person will vary depending on what the nature of the disclosure is and the sector in which the worker operates.  

A complete list of prescribed persons can be found here. (–2) 

The coverage of whistleblowing protection  

The legislation mentions the word “worker”, and this has a specific meaning in employment law. 

However, is anyone else who is not classed as a worker covered by whistleblowing legislation? A recent Employment Appeal Tribunal case  

Miss P Sullivan v Isle of Wight Council: [2024] EAT 3 has helped draw the line on where protection starts and ends.  

What happened? 

In 2019, Miss Sullivan applied to the Isle of Wight Council for two positions in the Finance Department, DPSS Account Officer and Direct Payment Finance Officer. However, she did not get either role.   

After the council had advised her of this, she submitted a crime report to the police, wherein she alleged that she had been verbally assaulted during one of the interviews for the positions. She also contacted a confidential safeguarding hotline set up by the council. 

Having done this, she also sent a copy of her report to the Chief Executive of the council, along with documents that she said showed “financial impropriety” by one of the council’s employees.  

She informed the Chief Executive that if he didn’t respond within 28 days, she would take her complaint further, to the Local Government and Social Care Ombudsman. 

As if this wasn’t enough, she also contacted her MP and said that by doing so, she was making a protected disclosure.  

As the Employment Appeal Tribunal’s judgment detailed: 

“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…Trust and the alleged involvement of one of the respondent’s managers… The claimant stated that she had sent details of her complaint to the Police and to the respondent.”  

Later that year, the Council’s investigation found no evidence of any wrongdoing.  

Miss Sullivan was not given the right to appeal the findings (despite one being available to her under the Complaints Procedure).  

In November 2020, she issued a claim to the Employment Tribunal against the council for whistleblowing detriment. In her claim, she said that she had been refused the right of appeal because she had made a protected disclosure concerning the Council employee and the Trust.  

Her claim accepted that under the Employment Rights Act 1996, she was not classed as a worker and therefore wasn’t protected for making a disclosure.  

However, she said that Sections 47B and 48 of the Act should cover external applicants under Article 10 of the European Convention on Human Rights (Freedom of Expression) and Article 14 (Prohibition of Discrimination) and that, like a case in 2019, Gilham v Ministry of Justice, she would fall under a category in Article 14 of “other” status.  

Article 14: Prohibition of discrimination 

The enjoyment of the rights and freedoms set forth in the European Convention on Human Rights and the Human Rights Act 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. 

Therefore, Miss Sullivan said that she was entitled to protection from detriment for a public interest disclosure. 

What did the Tribunals say?  

The Employment Tribunal did not agree with her interpretation of the law and said it didn’t have the jurisdiction to hear her claim. She was an external applicant, and her position wasn’t the same as an internal candidate or an NHS applicant.   

Although Miss Sullivan appealed to the Employment Appeal Tribunal (EAT), she was unsuccessful. The EAT agreed with the ET and added that external job applicant” was not a relevant employment status under Article 14 and therefore the points raised by the case of Gilham in 2019 did not apply. 

Miss Sullivan argued that, since Section 3(1) of the Human Rights Act said: 

“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”  

this meant that the Employment Appeal Tribunal should amend Section 43K of the Employment Rights Act “to comply with her contentions on convention rights” 

However, the EAT concluded that this would not have ‘gone with the grain’ of the Act and would be a matter for parliament and not the courts. 

Furthermore, Parliament had already considered the position of applicants and had chosen not to extend the NHS employer protection to other applicants for employment.  

What does the law say? 

The law protects external job candidates against discrimination on the grounds of protected characteristics but not against a detriment on the grounds of whistleblowing. [see below]  

Sections 43A of the Employment Rights Act define “whistleblowing” or a “protected disclosure” as a qualifying disclosure which is made by a worker.  

Section 43B defines a “qualifying disclosure” as  

“any disclosure of information which, in the reasonable belief of the worker making the disclosure is made in the public interest and tends to show one or more of the following— 

(a) that a criminal offence has been committed, is being committed or is likely to be committed, 

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, 

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur, 

(d) that the health or safety of any individual has been, is being or is likely to be endangered, 

(e) that the environment has been, is being or is likely to be damaged, or 

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. 

While external job applicants are protected against discrimination, they are not currently protected against a detriment due to whistleblowing, unless they are applying for a post in the NHS. 

Section 3 of the Employment Rights Act 1996 (NHS Recruitment – Protected Disclosure) Regulations 2018 says 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.” 

Paragraphs 6 and 7, Section 49B of the Employment Rights Act define what an NHS employer is.  

(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) the Health Services Safety Investigations Body; 

(h) the Health Research Authority; 

(j) the National Institute for Health and Care Excellence; 

(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. 

What do employers need to know? 

This case shows how important the issue of whistleblowing is for employers. Creating a safe space for workers to speak up is key to ensuring a culture of openness and a good way of tackling issues such as fraud, corruption and unethical behaviour. 

Raising such serious matters can feel unnerving and worrying, but an anonymous system can help encourage workers to feel safe in coming forward with important information.  


That’s where whistlebox from rradar comes in.  

All organisations face the risk of things going wrong or of unknowingly harbouring illegal or unethical conduct. Raising such serious matters can feel unnerving and worrying for your staff members and managers. 

whistlebox is a 24/7 reporting service from rradar, a specialist commercial and litigation law firm expert in helping organisations through times of crisis and empowering them to take the best course of action. 

whistlebox can provide your organisation a clear whistleblowing policy and procedure to follow and gives your employees a safe and independent channel to voice their concerns.