News

07/04/2025

Court of Appeal issues important guidance on Article 14 ECHR challenges to employment legislation

News, Employment & discrimination

On 3 April 2025, the Court of Appeal gave judgment in the case of Sullivan v Isle of Wight Council [2025] EWCA Civ 379.

Background

• The Claimant was an applicant for employment with the Respondent local authority. As an applicant for employment, she could not make a whistleblowing claim under the Employment Rights Act 1996 (“ERA”).
• The Claimant had unsuccessfully applied for two jobs with the Respondent. Following the rejections, the Claimant wrote to her Member of Parliament detailing her complaints. A copy of the letter was sent to the Respondent. The letter was relied upon by the Claimant as containing her protected disclosure.
• Following its investigation, the Respondent concluded that there was no evidence of any wrongdoing by staff and the complaint was not upheld.
• The Respondent also decided that in light of the circumstances of the case, it would not make available to the Claimant the normal option of a further review of her complaint.

The whistleblowing claim

• One of the claims presented by the Claimant was for whistleblowing. The allegation was that the refusal of a further review was a detriment because she made a protected disclosure.
• The Claimant accepted that she was not a worker under sections 47B and 48 ERA, nor was she an applicant for NHS employment the purposes of section 49B ERA. In summary, her claim was that, relying on Gilham v MOJ [2019] UKSC 44, [2019] 1 WLR 5905, sections 47B and 48 ERA ought to be read so as to include job applicants in light of Article 14 ECHR, read with Article 10 ECHR.
• The Employment Tribunal (“ET”) and the Employment Appeal Tribunal (“EAT”) dismissed the claim. The EAT also considered that had the appeal not been dismissed, the question of whether the difference in treatment was objectively justified would have been remitted to the ET.
• The Claimant appealed to the Court of Appeal.

The judgment of the Court of Appeal

• It was agreed that the subject matter of the complaint fell within the scope of Article 10 such as to engage the discrimination provisions of Article 14 ECHR.
• The Court of Appeal held that being an applicant for a job is capable of constituting ‘other’ status for the purpose of Article 14 ECHR; it is an acquired characteristic, capable of distinguishing one group of persons from another.
• The Court of Appeal however held that the Claimant, as an external applicant for employment, was not in an analogous situation to internal job applicants or applicants for jobs with NHS employers. The position of someone seeking work is materially different from someone in work. Further, the structure of the NHS and its recruitment process created a unique and specific issue in relation to protecting the public that Parliament wished to address by affording whistleblowing protection to relevant job applicants.
• On objective justification, the correct approach was set out by the Supreme Court in R(SC) v Secretary of State for Work and Pensions and others [2021] UKSC 26, [2022] AC 223. In the present case, the difference in treatment arising out of the provisions of the ERA dealing with protected disclosures was a proportionate means of meeting the legitimate aims of the legislation. Parliament had expressly considered matters relevant to compatibility, including the relevant issue of job applicants.
• In any event, the detriment to which the Claimant was subject did not relate to her job applications. The ET was correct to conclude that the claim presented did not involve a detriment to which the ERA applied.

Guidance on an Article 14 ECHR challenge to employment legislation

In finding that the whistleblowing provisions of the ERA did not breach the Claimant’s ECHR rights,  the Court provided guidance as to the correct approach to take in Article 14 challenges to employment legislation. The Court held that:

• In considering the proportionality of legislation that relates to general measures of economic and social strategy, such as employment legislation, ETs must give appropriate weight to the judgement of the legislature.
• The starting point is to identify the aim or purpose of the legislation. That is primarily ascertained from the language used and other permissible extraneous aids such as explanatory notes, government white papers or reports, or statements in Parliament.
• In relation to the proportionality assessment:
• “Suspect” grounds, such as sex, race or ethnic origin in general call for weighty reasons to justify differences on those grounds.
• The ET must have regard to whether Parliament has itself considered and formed a judgement on the balance of the competing interests. Relevant considerations for the ET include the age of the legislation and whether matters relevant to compatibility were raised during the legislative process. However, the ET must not undertake a critical assessment of the Parliamentary debate, and the absence of debate will not count against the compatibility of a measure: the courts will simply have to consider that issue without that factor being present.
• It is important for ETs to bear in mind that primary legislation necessarily involves differentiating between different groups of people on different grounds. Parliament will identify which groups of people, and in which circumstances, will have the protection provided and rights or benefits conferred. Drawing such distinctions is inherent in the legislative process. The fact that Parliament has chosen to legislate for one particular set of circumstances is unlikely, of itself, to demonstrate any lack of objective justification for the legislation that is adopted.
• The court noted that the ET will usually be in a position to determine the compatibility of primary legislation with the ECHR simply by considering the legislation and any permissible aid to statutory interpretation. However, if necessary, the ET can invite a relevant government department, which is likely to have the greatest interest in, and knowledge of the relevant legislation, to intervene.

Robert Moretto acted for the Department for Business and Trade, the First Intervener. A full copy of the judgment can be found here.

This case note was written by Annie Davis.