A case referred to the Court of Appeal is set to determine whether all job applicants should be legally protected under whistleblowing laws. The outcome could have important implications for recruitment and workplace accountability for the treatment of job applicants across the UK.
The current legal landscape
At present, UK whistleblowing laws—primarily governed by the Employment Rights Act 1996 (ERA 1996)—do not extend to most job applicants. The only exception is NHS job applicants, who are protected if they have made a “protected disclosure” (i.e. reported, in the public interest, one of a number of qualifying disclosures such as that a criminal offence has been committed, or is likely to be committed, and/or that a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject).
Other categories of workers, such as agency workers and those on work experience, are covered by whistleblowing protections when applying for roles in the NHS.
External job seekers in other sectors do not have such protection. Employers are unwilling to employ applicants who have previously blown the whistle. Individuals may be blocked from continuing their careers in their chosen fields or face glass ceilings.
Some employers, rather than seeing whistleblowers as ethical and principled individuals, may view them as potential risks. If an applicant has previously exposed wrongdoing, recruiters may be hesitant to hire them.
Without legal protection, whistleblowers can be silenced by exclusion from employment opportunities, discouraging others from speaking up about unlawful or unethical practices in the workplace.
The case at the Court of Appeal
The UK’s leading whistleblowing charity, Protect, has intervened in this case at the Court of Appeal in an effort to extend legal protection to all external job applicants. Represented pro bono by Farrer & Co and Claire Darwin KC and Nathan Roberts of Matrix Chambers, Protect argues that whistleblowing laws should cover individuals applying for jobs, ensuring they cannot be discriminated against or blacklisted for having previously raised public interest concerns.
The key legal question being considered is whether external job applicants should be covered by whistleblowing laws if they have made a protected disclosure during the job application process?
Protect’s intervention highlights the broader public policy implications of the case, including:
- Encouraging whistleblowing – If job applicants fear career-ending retaliation, fewer people will come forward to report serious wrongdoing.
- Ending blacklisting – Expanding protections would help prevent unfair discrimination against individuals who have previously blown the whistle.
- Ensuring fair recruitment practices – Employers should evaluate candidates on their skills and experience, rather than penalising them for past whistleblowing.
Why this matters for employers and employees
If the Court of Appeal rules in favour of extending whistleblowing protections, employers will need to ensure that recruitment processes and decisions are legally compliant and transparent. Businesses would need to be aware of their obligations under an expanded legal framework and take steps to prevent detrimental treatment of whistleblowers.
What comes next?
The outcome of this case could reshape UK whistleblowing law. If the Court of Appeal agrees with Protect’s position, we could see new legal protections for job applicants who speak out about wrongdoing.
Until then, if you are an employer looking to ensure compliance with whistleblowing laws, or an employee concerned about your rights, seeking expert legal advice is crucial. The employment law team at Tees Law can help businesses navigate whistleblowing regulations and advise individuals on their legal protections.