So, we now know (at least until the Employment Appeal Tribunal tells us otherwise) that Uber drivers are workers and therefore deserve to benefit from workers’ rights. But what about District Judges?
The question of worker status came before the EAT this summer in the case of Gilham v Ministry of Justice UKEAT0087/16/LA, this time in the context of a whistleblowing claim brought by a District Judge.
The judgment of the EAT’s President, handed down on 31 October 2016, confirms that District Judges are “office-holders”; they are not “workers” within the meaning of s203(3) Employment Rights Act 1996 and are therefore not entitled to benefit from whistleblowers’ protection under s47B of the Act.
District Judge Claire Gilham made protected disclosures over lack of appropriate courtroom accommodation, the impact on district judges’ workloads, risks to the health and safety of courtroom staff and potential miscarriages of justice following Government austerity measures. DJ Gilham alleges that as a consequence, she suffered a detriment – the Ministry of Justice responded to her complaint by bullying and overworking her which caused her to suffer severe stress, anxiety and depression. In October 2015, the employment tribunal heard DJ Gilham’s claims for disability discrimination and whistleblowing and held that since DJ Gilham did not work under any contract with the Ministry of Justice, she consequently did not have recourse to whistleblowing protection.
DJ Gilham appealed the decision. She argued that the employment tribunal had erred as to the legal test for determining worker status; there was offer and acceptance, consideration on both sides, intention to create legal relations and mutuality of obligations giving rise to a contract.
The EAT held that these features could also be present for office-holders, and as such did not necessarily mean that there was a contract in existence. Rather, status is determined by analysing the way the individual is engaged and the manner in which they carry out their duties.
No private agreement exists between District Judges and the Ministry, akin to a contract of service, or for services. District Judges are appointed by the Crown, their terms of service (including pay) are derived from statute and they are ultimately governed by the Lord Chief Justice, not the Ministry of Justice. These factors are designed to reinforce the independence of the judiciary, which would be undermined by the existence of a contract.
The EAT did not agree that a contract should be implied through necessity to ensure that District Judges had recourse to this important protection from suffering detriment. The EAT held that there were already sufficient safeguards in place (including security of tenure until the age of 70 and recourse to a grievance process) for District Judges to enforce their rights. There were also adequate safeguards in relation to freedom of speech.
To read the full judgment in this case, click here.