In a landmark case Gilham v Ministry of Defence the Supreme Court has held that whilst judges are not 'workers'...
...the exclusion of judges from whistleblowing protection is a breach of their rights under the European Convention of Human Rights.
Definition of Workers
Under section 230(3) of the Employment Rights Act 1996 (ERA) , a 'worker' has a wide definition as an individual who enters into or works through a contract of employment or any other contract where the individual performs the work for the 'employer' personally eg some types of independent contractor. Genuine customer/client relationships are excluded.
For the purposes of whistleblowing protection, the definition of worker is wider and includes other types of workers such as homeworkers, agency workers and police officers.
Judges Are Not Workers
The Claimant is a District judge who raised a number of complaints regarding the impact of cuts on the administration of justice. The Claimant argued these complaints were protected disclosures and therefore she should be protected by whistleblowing legislation. The Employment Tribunal, Employment Appeal Tribunal and the Court of Appeal concluded that judicial office holders are not workers for the purposes of the ERA as they do not work under any contract. The Supreme Court agreed, however they considered a further question regarding human rights.
Whistleblowing Protection for 'Office Holders'
The Supreme Court agreed with the argument that the failure to extend whistleblowing protection to a judge is a violation of their human rights under Article 14 of the European Convention of Human Rights - the right to enjoy all Convention rights, which includes the freedom of expression. It held that current whistleblowing legislation deprives those who do not work under a contract of the right to pursue complaints to an Employment Tribunal.
The Supreme Court held that Article 14 applies to judges as they are 'office holders', which comes under the Convention category of 'other status'. It suggested that for the purposes of whistleblowing legislation, the definition of workers should be read to include the term 'office holders'.
This judgment therefore has wide implications by extending whistleblowing protection to individuals who were previously beyond its scope. 'Office holders' does not just include judges, and it is likely to apply to many other professions, such as the clergy and statutory appointments such as company directors and board members.