The Answer
No, they do not, as ruled the Employment Appeal Tribunal in the case Sullivan v Isle of Wight Council. Although the court said judicial office holders were not employees for the purposes of the Employment Rights Act 1996, they were entitled to be protected against any sanction or detriment. To deny them such protection would infringe their human rights under the EU Convention on Human Rights. In this case the claimant argued that she was denied the right of appeal due to her occupational status. But here, the occupational status was not that of a judicial officeholder.
Briefly, Miss S was interviewed for two roles at the Isle of Wight Council. She was not successful and subsequently made several allegations against the interviewers and alleged financial irregularities. After investigating, the allegations were dismissed. The Council argued that they did not offer her the right of appeal in order to protect the wellbeing of staff, who had been affected by the investigation. Miss S argued this amounted to a detriment as a result of her complaint. The Council said as she was not an employee under ERA 96, she did not benefit from this protection. She cited the protection afforded to job applicants in the NHS under a specific provision, as an example.
The Employment Tribunal rejected her claim. She appealed to the Employment Appeal Tribunal who also rejected her appeal. They ruled job applicants were not analogous to existing employees, nor to external applicants in the NHS (who benefit from protection to ensure patient safety) They also felt that the less favourable treatment arose from her status as a job applicant, nor was she analogous to a judicial officer who do benefit from protection. They ruled that the current legislation did not offer protection to job applicants.
The Risk/Threat
Although external job applicants do not receive the same whistleblowing protection, employers need to be mindful that internal employees, judicial postholders and applicants/staff in the NHS do benefit from the protection. Those who qualify for protection should be dealt with correctly and given an opportunity to complain without fear of recriminations. Failure to do so can lead to claims with serious financial implications.
What You Need To Do
Employers should have a clear guidelines and policies allowing employees to raise concerns without fear or intimidation and dealt with objectively and thoroughly. Whilst allowing employees avenues to complain, it also allows employers to direct staff to appropriate bodies to forward the complaint in the hope to minimise/restrict the damage.
This case highlights how far the whistleblowing protection goes. If you require any further advice and assistance, please do not hesitate to contact our Hr Advice Line on 01455 852 028.
