REWARD
the respondent took the necessary steps to provide auxiliary aids which were recommended by a medical practitioner. The claimant was employed as a senior nurse practitioner working in the community. They suffered a brain haemorrhage, which resulted in memory loss and impaired cognitive functioning. Before returning to work, they completed an Access to Work form, and it was recommended that equipment and software be provided for them to use. It was also recommended that the claimant be given training on coping strategies to help them in their work, alongside technical training on the use of any equipment, to use them effectively for their work. When the claimant returned to work, they were given a reduced caseload and a role that wasn’t in the community, but the recommended equipment wasn’t provided for several months. Although a request was placed for these aids on the claimant’s return to work, their manager didn’t ask for the order to be processed for some time. Once the equipment had been provided, the claimant didn’t receive the technical training to use it, nor the coping strategy training. While the claimant was chasing this equipment and training, they were moved back to work in the community. Conversations were had with the claimant regarding this move, and they were told to “give it a go”. It was agreed that the claimant wouldn’t take on the senior responsibilities attached to their role. Sometime later, by which time the claimant had received all the auxiliary aids that were needed, but not the technical training to use them, and had begun coping strategy training, they were told their senior duties would be resumed. The claimant was left feeling overwhelmed and under supported. They went off sick and eventually took ill-health retirement. The claimant brought a claim for failure to make reasonable adjustments by failing to provide auxiliary aids. The ET noted that the respondent thought the equipment and training were necessary but didn’t take action to ensure the auxiliary aids were provided. It was only when the claimant chased the provision of these that they were provided, with a significant delay. By failing to provide the training at all and the equipment in a timely manner, the
ET found that the respondent had failed to take the necessary steps to provide the auxiliary aids. It had thus failed in its duty to make reasonable adjustments necessary to remove the disadvantage as a result of the claimant’s disabilities. Moreover, the respondent’s actions in reinstating senior duties which had been removed due to the claimant’s condition, but still failing to provide what was needed to perform these duties, showed again that the respondent failed to take the necessary steps to remove the claimant’s disadvantage. “She argued that, although she wasn’t a worker, the protections for whistleblowers should be extended to applicants” Whistleblowing protections don’t extend to external applicants In the case of Sullivan v Isle of Wight Council, the Court of Appeal (CoA) had to consider whether the ET and EAT were correct in dismissing the claim on the grounds that whistleblowing protections don’t apply to external job applicants. The claimant had two job interviews with the respondent but wasn’t accepted for either role. The claimant then filed a police report which alleged that during the interviews, she’d been verbally harassed by the respondent’s employees. She later complained directly to the respondent, prompting an internal investigation, and alleged that an employee was involved in trust-related financial irregularities. The respondent dismissed the complaints and disapplied her right to appeal. The claimant brought a claim before the ET arguing that she had suffered a detriment when her right to appeal had been disapplied, and that this was because of the allegations regarding the financial irregularities she’d made. She argued that, although she wasn’t a worker, the protections for whistleblowers should be extended to applicants. The ET had to first establish if it had
jurisdiction to hear this case. This hung on whether or not the claimant held the appropriate status, i.e. worker or employee, to be eligible to bring an ET claim. The claimant was arguing that internal applicants could be used for comparative purposes, and that by denying the right of appeal she’d been treated less favourably than an internal applicant would have been. This was, however, rejected by the ET. In the case of an internal applicant, there’s an existing relationship between them and the employer that doesn’t exist in the same way as between the employer and an external applicant. As such, the situations can’t be analogous. This reasoning led to the conclusion that she wasn’t eligible to bring a whistleblowing claim. The ET held that Parliament had clearly intended to exclude job applicants from having whistleblower protection. Dismissing the appeal, the EAT confirmed the ET’s decision that the claimant wasn’t treated less favourably to others in an analogous situation due to her status as an external job applicant. The CoA also dismissed the claim. Upholding the decisions in the courts below it, it found that the claimant wasn’t “in a materially analogous position” to workers or applicants who do have protection against a detriment as a result of a protected disclosure. An interesting point to note in this case is that the whistleblowing charity, Protect, intervened in the case on public policy grounds. It submitted that the law is inconsistent with UK employment rights legislation, by filing a third-party intervention at the CoA to widen whistleblowing protections to all external applicants.
PROFESSI NAL in Payroll, Pensions and Reward
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June 2025 | Issue 111
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