Gilham (Appellant) v Ministry of Justice (Respondent) - (16 Oct 2019)

Whistle-blowing protection in Part IVA of Employment Rights Act, 1996 extends to district judges as well

Civil

Present case is about the employment status of district judges, but it could apply to the holder of any judicial office. The issue is whether a district judge qualifies as a “worker” or a “person in Crown employment” for the purpose of the protection given to whistle-blowers under Part IVA of the Employment Rights Act, 1996 (“the 1996 Act”). If a district judge does not on the face of it, qualify for whistle-blower protection, the further question is whether this is discrimination against her in the enjoyment of her right to freedom of expression under the European Convention on Human Rights.

In Section 230(3) of the 1996 Act, a “worker” is defined as “an individual who has entered into or works under (or where the employment has ceased, worked under) - (a) a contract of employment, or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.” The Appellant does not claim that, a judge works under a contract of employment within limb (a) of that definition, but contends that she does fall within limb (b) of the definition.

The applicant, and others like her, has been denied the protection which is available to other employees and workers who make responsible public interest disclosures within the requirements of Part IVA of the 1996 Act. She is denied protection from “any detriment”, which is much wider than protection from dismissal or other disciplinary sanctions. She is denied the possibility of bringing proceedings before the Employment Tribunal, with all the advantages those have for applicants. She is denied the right to seek compensation for injury to feelings as well as injury to her health. This is undoubtedly less favourable treatment than that afforded to others in the workplace - employees and “limb (b)” workers - who wish to make responsible public interest disclosures. The judicial office-holder has been treated less favourably than others in relation to the exercise or enjoyment of the Convention right in question, the right to freedom of expression.

The exclusion of judges from the whistle-blowing protection in Part IVA of the 1996 Act is in breach of their rights under article 14 read with article 10 of the ECHR. To interpret Section 230(3)(b) so as to include judicial office-holders would not afford them all the rights afforded to “workers” under the 1996 Act, but only those rights afforded to “limb (b)” workers, most of which are inapplicable to judges. But in any event, the interpretation in this case would only relate to an exclusion which is incompatible with the Convention rights - otherwise the Section 3(1) power and duty does not apply. And the inclusion of judicial office-holders within the Equality Act 2010, as well as within EU derived employment rights, shows that affording judges some of the rights of other workers does not offend against any fundamental constitutional principle.

It would not be difficult to include within limb (b) an individual who works or worked by virtue of appointment to an office whereby the office-holder undertakes to do or perform personally any work or services otherwise than for persons who are clients or customers of a profession or business carried on by the office-holder. The legislation contemplates disclosure to an employer or others responsible for the conduct in question, which in this case would be the leadership judges or the HMCTS or the Ministry of Justice, depending upon the nature of the conduct. It also prohibits both the employer and fellow employees from subjecting the whistle-blower to any detriment, which again would have to embrace fellow judges and those in a position to inflict such detriments. When considering whether the disclosures had been made in the public interest, it would of course be relevant to consider, whether there were other more appropriate ways of trying to resolve the situation. This would include the judicial grievance procedures policies.

The relevant provisions of the Employment Rights Act extends to both England and Wales and Scotland (section 244) but not Northern Ireland. However, the equivalent provisions of the Employment Rights (Northern Ireland) Order 1996 (as amended by the Public Interest Disclosure (Northern Ireland) Order 1998) are to the same effect: Article 3(3) defines “worker” in the same times as Section 230(3); articles 67A, 67B, 67C define protected disclosures, qualifying disclosures and those to whom such disclosures may be made in the same way as in Part IVA of the 1996 Act; and Articles 70B and 71(1A) provide that, a maker of a protected disclosure shall not be subjected to any detriment for doing so and for complaints to an employment tribunal. Those provisions, too, should be read and given effect so as to extend the protection given to whistle-blowers to the holders of judicial office. The case remitted to the Employment Tribunal on the basis that, the Appellant is entitled to claim the protection of Part IVA of the 1996 Act. Appeal allowed.

Tags : JUDICIAL OFFICER WHISTLE-BLOWING PROTECTION