Should judges be viewed as ‘workers’ entitled to whistleblowing protection under the Employment Rights Act 1996 (the Act)? In a ground breaking ruling, the Supreme Court has answered that question decisively in the affirmative.
The case concerned a district judge who lodged a formal grievance in response to government cost-cutting measures in 2010. She argued that the budget reductions had severely impacted the administration of justice and greatly increased her workload. She claimed that the handling of her complaints had gravely affected her health, resulting in psychiatric injury and disability.
She lodged Employment Tribunal (ET) proceedings on the basis that she had been subjected to detrimental treatment by reason of her whistleblowing activities. That claim was, however, dismissed on the basis that she was not a worker, as defined by Section 230(3) of the Act. That conclusion was subsequently confirmed by the Employment Appeal Tribunal and the Court of Appeal.
In upholding her appeal against the latter ruling, the Court noted that her letter of appointment by the Lord Chancellor specified the duration, salary, pension and conditions of her engagement. However, as a statutory office holder, she did not necessarily hold office pursuant to a contract. That depended on the intention of the parties, reflected by the manner of her engagement and other factors.
The essential components of her judicial office were derived from statute and not a matter of negotiation. She was neither a civil servant, nor a Crown employee. It was in any event difficult to identify her employer because the constitutional separation of judicial from executive powers weighed against recognition of a contract between a minister of the Crown and a member of the judiciary.
The detriments, including bullying, victimisation and a failure to take her complaints seriously, would, if established, amount to an interference with her human right to freedom of expression, enshrined in Article 10 of the European Convention on Human Rights. However, a claim under the Human Rights Act 1998 (the HRA) would not enable her to seek the wider relief available under the Act.
The failure to extend to her the whistleblowing protections under the Act therefore amounted to unlawful discrimination, contrary to Article 14 of the Convention. She had been treated less favourably than employees and workers who made responsible public interest disclosures. There was no evidence that either the executive or Parliament had addressed their minds to the exclusion of the judiciary from whistle-blowing protection and it had not been argued that that exclusion was pursuant to a legitimate aim.
In those circumstances, the Court engaged its powers under Section 3 of the HRA to read the Act in such a manner as to extend whistleblowing protection to members of the judiciary in accordance with their human rights. It found that any other conclusion would go against the grain of the Act. The matter was remitted to the ET on the basis that the district judge is entitled to whistleblowing protection under the Act. The ET will also consider her complaint of disability discrimination, brought under the Equality Act 2010.
Gilham v Ministry of Justice. Case Number: (2019) UKSC 44