In Gilham v Ministry of Justice (2017) EWCA Civ 2220, the Court of Appeal ruled that a judge is not a worker within the meaning of the Act, concluding that there is enough statutory protection for judges to warrant their exclusion from the protection afforded by the Employment Rights Act 1996 (ERA 1996).
The Relevance of the ERA 1996 to Whistleblowing
Section 47B of the ERA 1996 outlines that workers must not suffer detriment as a result of bringing a whistleblowing claim. The main dispute in this case, was over the meaning of the term ‘worker’ and whether a district judge qualifies as a worker. In the ERA 1996, a ‘worker’ is defined in section 230(3) as ‘an individual who has entered into or works under a contract. The definition of ‘worker’ is further elaborated in section 43K to include a person who does not have a contract but is introduced to the work by a third party and that the third party determines the terms of the work.
The court analysed these definitions and applied them to Ms C Gilham’s position as a district judge.
A District Judge, Ms Gilham, brought a case to the Employment Tribunal claiming that she had suffered detriment as a result of bringing a whistleblowing claim.
The nature of the whistleblowing claim was not discussed in detail, however it concerned unsafe working conditions and an excessive workload. The case was heard in the Employment Tribunal and the Employment Appeals Tribunal and was then heard in the Court of Appeal.
The Court of Appeal had to decide upon three issues:
The employment status of District Judges – whether they are classed as ‘workers’ or not.
A Human Rights claim under Article 10 of the European Convention on Human Rights (ECHR), the right to freedom of expression; whether the right of District Judges to ‘blow the whistle’, encompassed by Article 10, are sufficiently protected by other statutes.
An alternative claim under Article 14 of the ECHR, the right to protection from discrimination; whether Ms Gilham’s Article 14 rights had been breached, due to any lack of protection arising from giving her ‘other status’ as an ‘office holder’ rather than a ‘worker.’
The Employment Status Issue
The employment status of a District Judge is relevant for making a claim under the Employment Rights Act 1996 for whistleblowing protection, as only ‘workers’ can make claims under this statute.
The court considered both the argument that a District Judge is a worker under the meaning of section 230(3), which requires that there is a relevant contract, and under section 43K that the person is a worker where an employer determines the scope and duties involved in the work.
The Court of Appeal agreed with the previous findings that there was no relevant contract between Ms Gilham and The Lord Chancellor or any other relevant person. A judge is widely considered an office holder, and though being an office holder does not preclude the possibility of there being an employment contract, in the case of judges, there is no relevant contract. This is due to both the selection process of District Judges, which is different from the process of signing a contract, and due to the fact that the judiciary should be seen as separate to the executive, of which the Lord Chancellor is a part.
Scope of Duties
The argument under section 43K was that, although the Lord Chancellor appoints the individual to be a District Judge, he does not determine hours of work, duration of work, salary or sick pay arrangements, which are all determined by statute. These are considered by the court to be usual and essential parts of an employer-employee relationship.
Another important point was that the Chancellor does not even have an unregulated power of removal, as this is also proscribed by statute.
Therefore, there cannot be a contractual relationship between District Judges and the Lord Chancellor.
Article 10 ECHR claim
Ms Gilham also put forward a claim that she had insufficient protection from disclosing certain information during her whistleblowing, which would constitute a breach of her Article 10 right to freedom of expression and information.
The court, however, found that judges enjoy significantly more protection and security in their jobs than the average ‘worker’ and are therefore sufficiently protected.
For example, judges are safe from dismissal as a correctly made act of whistleblowing is not sufficient to constitute misconduct (which could lead to a dismissal), as is outlined in the relevant statutes.
A judge is similarly safe from reduction in pay, as salary is also controlled by statute.
Other breaches of Article 10 also allow for the judge to bring proceedings against a public authority under section 7 of the Human Rights Act 1998, which outlines proceedings against public bodies which have acted unlawfully.
Therefore, there are many avenues of remedy available to judges and the court found that they are sufficiently protected from detriment arising from whistleblowing claims.
Article 14 ECHR Claim
Ms Gilham also submitted a separate argument that even if there is no breach of Article 10, there is a breach of the equality provision in Article 14 of the ECHR.
This article requires that all of the rights and freedoms set out in the ECHR must be protected and applied without discrimination. Ms Gilham contends that her classification as an ‘office holder’ rather than a ‘worker’ is discriminatory, placing her within the ‘other status’ category of Article 14.
The court found that holding an office such as District Judge does not qualify as ‘other status’ as ‘status’ must be a personal characteristic.
The court observed that the scope of protection under the Employment Rights Act 1996 is purely to do with having a relevant contract not with having a personal characteristic.
Although the case is awaiting appeal, the court has been clear with the reasoning as to why there is not, and cannot, be a contract between a judge and a member of the executive. The lower courts expressed concern that judges do not receive sufficient protection from any detriment which does not amount to dismissal, as grievance procedures do not allow for payment of compensation. Whether the Supreme Court will overturn the current decision or recommend that there is insufficient protection based on the Article 10 claim remains to be seen.
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