The Claimant had presented claims under the Employment Rights Act 1996 contending that, as a job applicant, she had been subjected to detriments on the ground that she had made protected public interest disclosures. Following a preliminary hearing, the ET determined that, having regard to the four questions to which the Supreme Court had referred in Gilham v Ministry of Justice [2019] ICR 1655, it lacked jurisdiction to consider those complaints. On appeal, the Claimant argued that the ET's findings contravened her rights under Articles 10 and 14 ECHR.

The EAT dismissed the appeal holding that the ET had been right to conclude that the Claimant had not been treated less favourably than others in an analogous situation and that external job applicant did not constitute ‘some other status’ for the purposes of Article 14. Furthermore, the treatment of which the Claimant complained had not been suffered qua external applicant. Whilst, when considering the issue of justification (question four), the ET had erred in its approach to proportionality, that error had been of no material effect, having regard to its answers to the second and third Gilham questions. In any event, the Claimant’s proposed amendment to section 43K of the ERA, with a view to rendering the statute Convention-compliant, would not have ‘gone with the grain’ of the legislation and, had the position been otherwise, the nature of any required amendment would have called for legislative deliberation.