The Supreme Court has decided unanimously in Gilham v Ministry of Justice that a district judge is not a worker for the purpose of the protection given to whistle-blowers under the Employment Rights Act 1996 (ERA), but that she could nevertheless bring a whistle-blowing claim.
Under s.230(3) of the ERA, a worker is defined as “an individual who has entered into or works 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 claimant claimed that she was a worker under section (b) of that definition (a so-called ‘limb (b) worker’).
The claimant was appointed as a district judge in 2006 and in 2011 raised a number of concerns relating to cuts in court resources and workload with senior managers, concluding in a formal grievance. She claimed that her complaints fell within the definition of “qualifying disclosures” for the purposes of protection against detriment as a whistle-blower.
The courts have previously held that judges are workers for the purposes of discrimination law. However, the whistle-blowing provisions of the ERA are not derived from EU law; accordingly the definition of worker does not have to be read so as to conform to the requirements of EU law. The Supreme Court noted that a judge may therefore have a different status in employment law depending on whether or not the employment right in question is derived from EU law.
The MOJ considered that she was not a limb (b) worker and the employment tribunal, the EAT and the Court of Appeal agreed.
Before the Supreme Court, it was not in dispute that a judge undertakes personally to perform work or services and that the recipient of that work or services is not a client or customer of the judge. The issue was whether that work or services are performed pursuant to a contract with the recipient. In considering this question it was necessary to look at the manner in which the judge was engaged, the source and character of the rules governing her service and the overall context.
The Supreme Court considered that although there was offer and acceptance (there was a letter offering appointment), the manner of appointment is laid down by statute. District judges are appointed by the Queen on the recommendation of the Lord Chancellor, but the selection process is in the hands of the Judicial Appointments Commission, applying criteria laid down by statute. Nothing in the letter offering appointment was expressed in contractual terms.
In the content of the relationship, some terms (such as those relating to maternity leave) were not derived from statute; however, the essential components of the relationship are derived from statute and are not a matter of choice or negotiation between the parties, such as remuneration, pension, discipline and dismissal. It was also noteworthy that the claimant had difficulty identifying her employer due to the fragmentation of responsibility among different bodies for both statutory and constitutional purposes. Finally, the constitutional separation of powers is a factor which goes against the existence of a contract between the MOJ, which is a government body, and a district judge. Taken together, all these factors pointed against the existence of a contract.
The Supreme Court also held that the claimant was not in Crown employment.
The Supreme Court went on to consider whether the failure to extend whistle-blower protection to judicial officers was a violation of her right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR) and held that it was not.
The claimant also claimed that failure to extend the whistle-blower protection to judicial office-holders is a violation of her rights under Article 14 ECHR (discrimination) read with Article 10. The Supreme Court considered that the exclusion of judicial office-holders from whistle-blower protection did treat the claimant less favourably than others in an analogous situation and that as no legitimate aim had been put forward it was not possible to judge whether the means were proportionate. The Supreme Court held that in order to remedy the incompatability with the claimant’s ECHR rights it was possible to read s.230(3)(b) ERA down so that it extended to an office-holder for the purposes of a whistle-blowing claim. The claimant was therefore entitled to bring a whistle-blowing claim.