Public Concern at Work (PCaW), represented by law firm Leigh Day, will argue at the Court of Appeal that to deprive those who hold judicial office from whistleblowing protection is incompatible with Article 10 of the European Convention of Human Rights, namely the right to freedom of expression without interference by public authority; and Article 14 which they will argue allows the right to whistleblowing protection without discriminating against certain groups of people (such as judges) because of their status.
PCaW is intervening in the case as it has been campaigning for some time for the whistleblowing law, the Public Interest Disclosure Act (PIDA), to be extended to cover all individuals, based on its experience in dealing with whistle-blowers and the whistleblowing legislation.
District Judge Claire Gilham is suing the Ministry of Justice (MoJ) after whistleblowing about excessive workloads whilst working in Cheshire which she claims damaged her health and well-being and led to potential miscarriages of justice due to under-funding in the justice system.
Claire Gilham is taking the legal claim under the Employment Rights Act 1996 for denial of her whistleblowing rights (among other things) against the Ministry of Justice. It follows her attempts to raise her concerns to the MoJ about dangers faced by those working in courtrooms due to an under-resourced justice system. She wrote to the MoJ to detail the death threats, violent defendants and hostage-taking which she had witnessed during her time as a judge in the family courts system.
Rather than acting to combat her concerns, Gilham claims that no changes were made and she faced bullying and was put under extra stress with longer hours and additional workloads.
The case highlights the issue that judges are not afforded legal protections given to whistle-blowers because they are not classed as workers.
The Employment Rights Act 1996 contains whistleblowing protection and is broadly intended to protect individuals who make public interest disclosures in the context of providing work or services, and indeed to encourage them to do so without fear of retaliation. This is not only an intrinsic public good but also has an important function in the prevention or deterrence of wrongdoing or endangerment of public safety. Over the years, the legislation has been slowly widened to protect additional groups of people when making protected disclosures. The Court of Appeal will hear that judges should also be protected by that legislation.
Head of Legal Services at PCaW, Roger Easy, said:
“In our history as an organisation, many of the whistle-blowers PCaW has spoken to have been office holders like Claire Gilham. School governors, elected officials, non-executive directors, members of the judiciary, club officials, trustees and members of the clergy are all classed as office holders.
"Police officers, who are also office holders, have access to most statutory employment rights, including whistleblowing protection, so it is unclear why these other comparable groups do not.
“Office holders occupy positions of responsibility and are likely to have access to information about an organisation that could show serious wrongdoing. It is essential people in these roles are protected.
"The danger of not affording judges, for example, with access to whistleblowing protection is that they can be ignored when raising genuine concerns and then silenced or discouraged from ever speaking up again. When we consider the important role played by District Judges in the administration of justice, excluding them from whistleblowing protection is unacceptable.”