The Supreme Court holds that judges are workers for the purposes of whistleblower protection- Gilham v Ministry of Justice.

Summary

A district judge raised concerns regarding cuts made to local services and argued that these amounted to protected disclosures. The Supreme Court upheld the claim and held that judges are office holders who are entitled to whistleblowing protection, as not allowing this would infringe their human rights.

The Law

Section 230(3) of the Employment Rights Act 1996 (ERA) defines a worker as an individual who has entered into work under a contract of employment or any other contract, whereby the individual undertakes to perform work or services personally for someone who is not a client or customer.

Section 47B of the ERA protects workers from suffering detriment because they have blown the whistle and Section 43K extends the usual definition of worker to include other individuals such as homeworkers and police officers.

Facts

Judge Gilham claimed that she was treated detrimentally after she raised concerns about failings in court administration, including the lack of appropriate secure room accommodation and severely increased workload. She argued that such concerns amounted to protected disclosures and related to a miscarriage of justice and health and safety.

The employment tribunal and the Employment Appeal Tribunal both decided that Judge Gilham was not a worker for the purpose of whistle-blower protections, holding that the intention of her appointment as a judge was not to enter into a contract and that she was instead a holder of judicial office.

The Court of Appeal upheld this decision and Judge Gilham appealed to the Supreme Court.

Decision

The Supreme Court confirmed that to find that judges are not protected, would infringe the human right of freedom of expression under Article 10 of the European Convention of Human Rights (ECHR).

Article 14 of the ECHR makes it unlawful to interfere with convention rights on certain grounds, including status. It was further argued that not entitling judges to whistleblowing protection would be discriminatory under Article 14 due to their status as judges, compared with other workers or employees afforded the same right.

It was noted that no legitimate aim for excluding this protection was presented, and extending whistleblowing protections to judges would not risk judicial independence.

The Supreme Court used its power under section 3 of the Human Rights Act, which requires legislation to be interpreted so as to give effect to Convention rights, to conclude that the ERA should be read to extend whistleblowing protection to judges by including ‘office holders’ within the definition of workers.

The case was remitted to an employment tribunal for a determination on the facts.

Implications for employers

In extending the definition of a worker to include office holders, the case has potential implications for other individuals to be conferred whistleblowing protection, who may not currently be protected. Other office holders such as non-executive directors and other professionals may be impacted and further challenges in relation to status may be brought before the courts, in order to extend this protection.

The law and practice referred to in this article has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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