P Sullivan v Isle of Wight Council [2024] EAT 3

‘The position of DPSS Account Officer 30. On 31 October 2019, the claimant attended an interview with the respondent for the position of DPSS Account Officer. The interview was conducted by Ms Martin, Mr Porter and Mr Philbrick. 31. On 4 November 2019 the respondent emailed the claimant advising her that she had been unsuccessful at interview. The respondent complemented the claimant on her academic achievements and gave advise for future interviews. … The claimant replied the same day thanking the respondent for the email. The claimant stated that it had been nice to meet everyone and informed the respondent of her intention to look for employment with other companies ... The position of Direct Payment Finance Officer 32. On 5 December 2019 the claimant attended an interview with the respondent for the post of Direct Payment Finance Officer. The interview was conducted by Ms Martin, Mr Porter and Mr Higginson. 33. On 7 December 2019 the claimant emailed the respondent with information regarding previous employment and associated matters … 34. On 10 December 2019 the respondent advised the claimant that she had been unsuccessful at interview. The respondent further stated that although the claimant had not been successful, she had done well at her interview and thanked her for attending… The claimant replied thanking the respondent for the email. The claimant advised the respondent that she had received news of her exams that day and that she had now completed her postgraduate Diploma in Environment Management… The crime report 35. On 7 January 2020, the claimant filed an online crime report with the Hampshire Police concerning an alleged verbal assault during an interview … which she stated she had not reported at the time. The claimant also stated that she had not raised a complaint with the respondent but intended to email their Safeguarding Team relating to the alleged statements made by the respondent during the interview that the claimant was mentally insane. The claimant also made reference to the Shanklin Chine [Charitable Trust] which she stated was dormant but had been taking revenues for many years. 36. The claimant also filed a report on the respondent’s confidential safeguarding helpline …in which she alleged that it had been repeatedly stated during the interviews on 31 October 2019 and 5 December 2019, that the claimant was apparently “mentally insane” and requested confirmation of whether anyone had raised any safeguarding reports concerning such false statements. … 38. On 12 February 2020 the claimant emailed the Chief Executive of the respondent, Mr J Metcalfe, in which she stated that she was attaching a copy of the report which she had sent to the Hampshire police together with other documents relating to the Shanklin Chine Trust….The claimant advised the Chief Executive that she would allow 28 days for the review of her Police complaint and any internal steps by the respondent after which she would progress her complaint to the Local Government and Social Care Ombudsman. 39. The respondent’s Chief Executive, Mr Metcalfe, acknowledged receipt of the claimant’s email which he stated he understood to be a complaint about the way in which the interviews were conducted. The Chief Executive advised the claimant that he would ask the respondent’s Director of Corporate Resources (Ms Shand) to have her complaint investigated and a reply sent to her... The Chief Executive further stated that the respondent had no connection with the Shanklin Chine and was therefore unable to comment any further on the allegations which she had made regarding its operation. 40. Ms Shand wrote to the claimant on 19 February 2020 advising the claimant that as the matter related to employees of the respondent, and in accordance with section 8 of the respondent’s complaints policy, it would investigate the matter in accordance with its employee code of conduct utilising the respondent’s disciplinary policy and employee conduct procedure. Ms Shand subsequently wrote to the claimant on 2 April 2020 apologising for the delay in concluding the investigation which she attributed to the impact of the covid 19 pandemic on the respondent’s resources. The email dated 17 March 2020 41. The claimant emailed Mr Metcalfe and Ms Shand on 17 March 2020 advising them that she had contacted the CQC and Justin Tomlinson MP and attached copies of her letters. The claimant also stated in her letter that she had attempted to contact the Local Government and Social Care Ombudsman but had been advised that she required a final response from the respondent before being able to progress the complaint... 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 Shanklin Chine Trust and the alleged involvement of one of the respondent’s managers, Mr Porter. … The claimant stated that she had sent details of her complaint to the Police and to the respondent. 43. Ms Shand advised the claimant in July 2020 that it would then be possible to recommence the investigation. The claimant’s reports of the interviews of 31 October 20[19] and 5 [Dec]ember 20[19] 44. On 13 July 2020 the claimant emailed Ms Shand and Mr Metcalfe attaching what she described as the full reports of the interviews on 31 October 20[19] and 5 December 20[19] (created on 12 July 2020) ... 45. … The claimant has recorded in the report [of the interview of 31 October 2019] multiple alleged inappropriate/discriminatory comments by members of the interview panel including that it was stated at the interview that she was mentally insane and that she had ugly lumps on her face. The claimant also recorded that Miss Martin had referred during the interview to an Employment Tribunal case from 2009 against the Post Office regarding allegations of a physical assault on the claimant. The claimant also submitted at that time a document recording alleged financial irregularities relating to the operation of the Shanklin Chine Trust of which it was alleged that Mr Porter was a trustee... 46. Ms Shand acknowledged receipt of the reports submitted by the claimant and advised her that they would be passed to the investigating officer. The claimant was advised that as the complaint related to employees of the respondent it would not be possible to inform the claimant of the detailed progress of the investigation or the outcome of any disciplinary action. The further/ amended reports submitted on 14 July 2020 47. On 14 July 2020 the claimant emailed to Ms Shand her amended reports of the interviews on 31 October 2019 and 5 December 2019. … The claimant stated that she believed that the amended reports were a full account of the interviews. 48. The claimant’s further accounts of the interview on 31 October 2019 are at pages … of the bundle. The notes record multiple allegations of alleged inappropriate / discriminatory comments /conduct by the members of the interview panel. The recorded comments/conduct include: - (a) alleged observations and comments regarding the claimant’s bottom and (b) an alleged reference to “the Post Office” by Ms. Martin which the claimant stated in the document she understood to be a reference by Ms Martin to a previous Tribunal claim involving an alleged physical assault with “sexual tones”. 49. The claimant’s detailed accounts of the Interview on 5 December 2019 are at pages … of the bundle. The notes again record details of alleged inappropriate/discriminatory comments/conduct by members of the interview panel. The record includes an allegation that during the course of the interview Mr Higginson banged his hand on the table and said to the claimant that she should “get some contraception” which the claimant speculated in the notes might have been said by him because she had a blemish on her nose. 50. An investigation into the claimant’s complaint was undertaken by a Strategic Manager in the Business Centre, to which the claimant was invited to contribute. The respondent’s outcome email dated 18 September 2020 51. Ms Shand emailed the claimant on 18 September 2020 advising the claimant of the outcome of the investigation into her complaints... In summary, …Ms Shand advised the claimant:- (a) that the respondent had concluded its investigation, in accordance with stage one of the respondent’s complaints procedure, into the complaint which the claimant had raised with the chief executive concerning the conduct and behaviour of four of its employees (b) summarised the process undertaken including that additional information had been sought from the police regarding the crime reports submitted by the claimant (c) that as advised previously, she was unable to share with her the detailed investigation report as it related to the conduct of employees and was therefore investigated pursuant to the respondent’s internal disciplinary procedure (d) assured the claimant that the allegations had been treated very seriously and a thorough investigation undertaken (e) the investigation had however concluded that there was no evidence of any wrongdoing by the members of staff and that her complaint was therefore not upheld (f) if she was dissatisfied with the decision the claimant would normally have the right to refer the matter to a stage 2 review which would be carried out by another senior officer. However, having given the situation very careful consideration Miss Shand had concluded that this would not be an appropriate course of action in the circumstances of the case as a thorough investigation had been undertaken and the process had had a significant impact on the staff involved (g) in the circumstances she considered it necessary to take measures to protect the respondent’s employees from any further distress being caused by any further pursuit of the allegations (h) further, as she considered that there was nothing further to be attained by a stage 2 review she was “disapplying that option” in the exceptional circumstances of the case. Accordingly, the claimant had no further option to pursue the complaint pursuant to the respondent’s complaints procedure (i) that the respondent did and would continue to treat any complaint against an employee very seriously however unjustified complaints about the same matter would not be investigated further unless they were properly evidenced and substantiated by new information (j) she hoped that the claimant would be assured that the allegations had been taken seriously but also appreciate the importance of the need to protect the well-being of staff. Ms Shand concluded her letter by confirming the claimant’s right to complain directly to the Local Government and Social Care Ombudsman (“the Ombudsman”) and provided the contact details. The claimant’s complaint to the Local Government and Social Care Ombudsman 52. The claimant submitted a complaint to the Ombudsman on 19 February 2021... In brief summary, the claimant complained about the respondent’s refusal to allow her a right of appeal against its complaint response dated 18 September 2020. The claimant stated that she felt that the refusal of the appeal was both discriminatory and due to her raising whistle blowing concerns relating to the Shanklin Chine Trust. The claimant further stated that she had progressed the matter to the Employment Tribunals, the Solicitors Regulation Authority and to the independent office of Police Complaints. 53. The Ombudsman declined to investigate the claimant’s complaint on the grounds that it related to a grievance by the claimant relating to two job interviews with the respondent and that it was not allowed as a matter of law to investigate employment related complaints. The Ombudsman’s draft decision dated 22 March 2021 is at pages … of the bundle. 54. The claimant subsequently raised concerns relating to the matters raised in the Tribunal proceedings with other public bodies including a complaint to the Solicitors Regulation Authority concerning the alleged conduct of the respondent’s solicitor concerning the contents of the respondent’s response in the Tribunal proceedings, which complaint was rejected (the email dated 22 April 2021 at pages … of … the bundle). The respondent's complaints procedure 55. The Tribunal has had regard to the provisions of the respondent's Complaints Policy including in particular:- paragraphs 2, (the definition of a complaint) 3 (aims and objectives) 4 (who can complain) - including that anyone can make a complaint if they believe that the respondent had done something wrong or done/ failed to do anything that they should or should not have done 5 (the respondent's undertaking to complainants - including that they would not suffer any penalty or discrimination as a result of making a complaint, 7 (unreasonable complainant behaviours) - including that that respondent has a separate policy for dealing with unacceptable behaviours, 8 (the procedure for dealing with complaint against members of staff) - including that complaints against members of staff are normally dealt with under the respondent's code of conduct for staff or through the internal disciplinary policy and procedure and further that it would not normally be possible to advise a complainant of the specific outcome of any disciplinary action taken, 9 & 10 (the procedures at stage 1 and stage 2 ) - including that at stage 2 a Head of Service/Strategic Manager would consider the complaint and response at stage 1 and respond to the claimant - there is no stated right to refuse a request for a stage 2 review save that at paragraph 4 the policy states that the respondent would not always use the stage 2 procedure as some types of complaints had their own procedures. The alternative appeal procedures listed in the Policy are not however applicable in this case.’

‘This is a claim for discrimination, victimisation, and whistleblowing on the following: The Claimant … asserts that the Respondent’s refusal of the Claimant’s right to a grievance appeal (Claire Shand email to Claimant dated 18.09.2020) was due to the Claimant raising a grievance in relation to detected accounting and taxation irregularities associated with Mr Matthew Porter’s (Manager for the Isle of Wight Council) involvement with Shanklin Chine Trust… and Shanklin Chine Limited… under…, the European Convention on Human Rights and the Human Rights Act 1998, the PIDA 1998, ERA 1996… The Claimant…asserts suffering a detriment by the Respondent due to the Claimant…being perceived as likely to ‘blow the whistle’ and/or actually having ‘blown the whistle’. … The Claimant believes that the Respondent would have permitted the Claimant the right to appeal her grievance through the Isle of Wight’s grievance channels had the Claimant not raised a complaint which involved whistleblowing…and reported the matter to a regulatory body…and the Police.’

‘The issues 12. … …does the claimant have the necessary status as a job applicant to bring a complaint that she has been subjected to detriments on the grounds that she has made protected public interest disclosures? 13. The claimant accepted that, as a job applicant (and not a worker), she was not, without the assistance of wider statutory interpretation (as referred to further below), entitled to pursue a claim for protected public interest disclosure detriment pursuant to sections 47B(1)/48 of the Employment Rights Act 1996 (“the Act”). 14. The claimant further confirmed that she accepted that for the purposes of section 49B of the Act (which section affords protection to applicants for employment in the health service from detriment for making protected public interest disclosures), that the respondent is not included in the list of NHS Employers/Public Bodies for the purposes of section 49B(6)/(7)(a) – (p) of the Act. 15. The claimant’s position in summary, is however that: - (1) The provisions of section 47B(1)/48 of the Act, should be extended/interpreted to include job applicants by reason of: - (a) … and/or (b) Articles 10 and 14 of the European Convention of Human Rights and/or the Human Rights Act 1998 and/or … the judgment of the Supreme Court in Gilham v Ministry of Justice. (2) … the provisions of section 49B(7) should in any event be extended/interpreted to include the respondent in the light of the wider provisions referred to in paragraph (1) above. 16. The respondent’s position continues to be however that: - (1) The provisions of section 47B(1)/48 and/or 49B of the Act are clear and unequivocal. They do not provide any protection to the claimant who was a job applicant (not a worker) for employment (in financial roles) with the respondent. Moreover, the respondent was/is not a designated NHS Employer/NHS Public body for the purposes of section 49B of the Act and the claimant cannot therefore rely upon such provisions. (2) Further, the relevant statutory provisions are not capable of being extended interpretated pursuant to any EU Directive (insofar as it is in any event of any relevance/ongoing application) and/or Human Rights provisions and/or… any other authorities such as to bring the claimant within such protections.’

‘Issue 1 1.1 (b) whether the claimant is, in any event, able to establish worker/ the necessary status by virtue of the application (for the purposes of section 47B / 48 (1) and/or 49 B of the Act) of the European Convention on Human Rights and/or the Human Rights Act 1998 (“the 1998 Act”) and /or the Enterprise and Regulatory Reform Act 2013. The relevant law 75. The Tribunal has had regard to the legal provisions referred to above (including in particular Articles 10 (freedom of expression) and 14 (prohibition of discrimination) of the Convention Rights contained in … Schedule 1 to the 1998 Act together with the judgment of the Supreme Court in Gilham v Ministry of Justice [2019] UKSC 44. Submissions 76. In summary, the claimant contends that:- (a) the Tribunal is required, pursuant to section 3 of the 1998 Act, to read and give effect to primary and subordinate legislation in a way which is compatible with the Convention rights and (b) the failure ( in respect of both section 47B and/or section 49B of the Act) to extend the “whistleblowing” detriment protections to job applicants such as the claimant is a violation of the claimant’s rights under Articles 10 and 14 of the claimant’s Convention rights. 77. The claimant further contends that the Tribunal is required to consider the four questions identified in Gilham as follows:- (i) do the facts fall within the ambit of one of the Convention rights – the claimant contends that they fall within the ambit of the right to freedom of expression protected by Article 10(ii). Has the claimant been treated less favourably than others in an analogous situation - the claimant contends that job applicants have been denied protection in comparison to others who make responsible public interest disclosures within the requirements of the Act. (iii) Is the reason for that less favourable treatment one of the listed grounds (in Article 14) or other status – the claimant contends that a job applicant is an occupational classification which is clearly capable of being a status within the meaning of Article 14 and (iv) – is that difference without reasonable justification – the claimant contends that there is no justifiable reason for falling to afford protection to job applicants (including as for the purposes of section 49B local authorities also recruit/employ staff who care for vulnerable people) and such exclusion must therefore be a breach of Articles 10 and 14 of her Convention rights. 78. In summary, the respondent’s primary position is that there is no scope for extending whistleblowing protection to applicants, as opposed to office holders, by using human rights law. Further, Parliament has already considered the position of applicants and has chosen not to extend the NHS employer protection to other applicants for employment. In respect of Gilham the respondent contends in particular as follows:- (a) “job applicants” do not have “other status” for the purposes of Article 14, if it was extended in that way it would apply to anyone who applies for a job whereas officer holders (as in Gilham) do have such status and (b) Parliament has already considered “job applicants” as a category for whistleblowing protection but has chosen to limit the protection to those working in the NHS by way of section 49B of the Act. There is reasonable justification for the decision to limit the extension of the protection to the NHS field as the NHS is a large employer with responsibility for patient safety and staff regularly move between NHS trusts (c) further a distinction should be drawn between this case and the situation in Gilham as for the purposes of remedy judicial officer holders such as Gilham readily fit within the worker relationship whereas job applicants do not have any such relationship and (d) as far as the claimant’s contentions regarding section 49(B) of the Act are concerned there is no justification for extending the section as contended by the claimant – the section carefully identifies which bodies are deemed to be NHS employers which definition is too tightly defined for any extension on Human rights grounds and (e) the respondent also relies, for the purposes of interpretation, on paragraph 16 of the EAT in Elstone, which stresses the importance of the relationship between the worker and the “employer” which is absent in this case. The conclusions of the Tribunal 79. Having given careful consideration to all of the above, including that the Tribunal is required pursuant to section 3 of the 1998 Act to read and give effect to legislation in a way which is compatible with Convention Rights, the Tribunal has reached the conclusions set out below. 80. The Tribunal has for such purposes given careful consideration to the four questions identified at paragraph 28 of Gilham as follows:- (i) – Do the facts fall within the ambit of one of the Convention rights – having for such purposes taken the claimant’s case at its highest, the Tribunal is satisfied that the facts may potentially fall within Articles 10 (freedom of expression) and Article 14 (prohibition of discrimination – in respect of “other status”) namely, that the claimant was allegedly subjected to a detriment (the refusal of a right of appeal under the respondent’s Complaints Policy) because she made an alleged protected public interest disclosure to her MP/the respondent on 17 March 2020 concerning the alleged conduct of Mr Porter in respect of the financial operation of the Shanklin Chine Trust as referred to above. (ii) Has the claimant been treated less favourably than others in an analogous situation – the claimant compares herself with others who are afforded protection under the Act namely employees/workers generally and also job applicants applying to join an NHS employer/NHS body (as defined in section 49B of the Act). Having given the matter careful consideration the Tribunal is not satisfied on the facts of this case that the claimant has established that she was in an analogous situation to the above for the following reasons:- (a) the Tribunal is not satisfied that a job applicant is in an analogous situation to an employee or worker of an organisation who has, by way of contrast as a minimum, entered [in]to a contract of employment or other contract/ office and has become a member of the workforce with associated rights and responsibilities. The position in this case is very different to that in Gilham. In Gilham, although the claimant was not a worker or employee, she was an officeholder who was integrated into and operated as part of the workforce and who held a substantive and highly responsible judicial role (b) further the Tribunal is not satisfied the a job applicant such as the claimant (who applied to a local authority for financial positions) is in an analogous situation to a job applicant who applied for a role with an NHS employer/body where staff, with specialist medical and associated skills, regularly transfer between such organisations and where patient safety is of paramount importance. (iii) Is the reason for that less favourable treatment one of the listed grounds in Article 14 of the Convention rights or some “other status?” The Tribunal is not satisfied that a “job applicant” which is a very wide and generic grouping constitutes, particularly having regard to the matters previously referred to at paragraph (ii) above, some “other status” for the purposes of Article 14 of the Convention Rights. (iv) Is the difference without reasonable justification – the Tribunal is, in any event, satisfied on the basis of the available information that there is reasonable justification for the difference in treatment between a generic and very wide ranging group of job applicants, who otherwise have no relationship with the organisation (to which the claimant belongs), and the categories which Parliament has chosen to protect namely:- (a) employees/ workers who work or have worked for the organisation and (b) those that apply to NHS employers (as defined). The situation in this case is very different to that in Gilham. Moreover, the Tribunal is strengthened in its view by the fact the EU, who considered the position of job applicants in 2019 chose to limit its protections to those job applicants who had gained “information of breaches” during the recruitment process. 81. For the avoidance of doubt the Tribunal is not satisfied that the claimant’s reliance on the Enterprise and Regulatory Reform Act 2013 (which was the mechanism by which the meaning of the term worker was extended by the amendment of section 43 K of the Act) adds anything to the above deliberations and this is therefore not separately addressed. 82. In all the circumstances, the Tribunal is not satisfied that it has jurisdiction to entertain the claimant’s complaint of detrimental treatment for making a protected public interest disclosure which complaint is therefore dismissed.’