Introduction

Whistleblowing protection continues to expand and develop. Even without reliance on Art.10 ECHR the Courts have not been shy of adopting what might at first appear to be a strained construction of the legislation to further the underlying policy objectives1. Now the Supreme Court's decision in Gilham v Ministry of Justice [2019] UKSC 44 has demonstrated the strength of the interpretative obligation to construe the legislation in accordance with Article 10 (or that article read with A.14 ECHR). Indeed this points to the possibility of extending the scope of protection much further. Litigation over the position of secondees, applicants, volunteers and others, as well as in relation to detriment inflicted because of a perception (justified or not) that a worker has or may be about to make a disclosure, or was associated in some way with someone else's disclosures, can be expected. These cases will need to explore the scope of the State's positive obligation to protect freedom of expression. They will no doubt face arguments that the necessary reading down is against the grain, or contrary to fundamental features, of the statutory provisions.

The decision in Gilham

DJ Gilham had been appointed in 2006. She raised various concerns in relation to major cost cutting reforms affecting County Courts, including about lack of appropriate and secure court room accommodation, the severely increased workload on district judges and administrative failures. Those concerns were raised with the local leadership judges, senior management in Her Majesty's Courts and Tribunals Service and eventually by a formal grievance. DJ Gilham claimed that these were protected disclosures and that she had she had been subjected to various detriments as a result of making them. Her claims in the employment tribunal were dismissed on the basis that she was not a worker.

One of the express requirements for worker status under s.230(3)(b) of the Employment Rights Act 1996 ("ERA") is a contractual relationship between the worker and the employer. The Supreme Court upheld the finding that district judges are not engaged under any contract. But it concluded that the legislation was nevertheless to be construed as covering district judges so as to comply with the strong interpretative obligation under s.3 of the Human Rights Act 1998 ("HRA") that so far as possible primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights. Imposing detriments for making a protected disclosure would be an unjustified interference with freedom of expression rights. The Court of Appeal had held that, taking into account other protections available to district judges, there was an effective remedy because of the right to bring a claim for damages under s.7 HRA. In the view of the Court of Appeal any argument based on the remedy being effective (but inferior to that afforded to others) could only be advanced on the basis of taking article 10 of the Convention together with the right under Art. 14. This provides:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

The Court of Appeal considered that "other status" meant personal characteristics going to status rather than contractual or non-contractual status. The Supreme Court disagreed: occupational classification" was capable of being a `status' within the meaning of article 14.

That conclusion was crucial. The other questions bearing on whether there was an infringement of Convention rights were easily answered:

  • The facts clearly fell within the ambit of the Convention rights.
  • There had clearly been less favourable treatment than that accorded to others in analogous situations, given that other workers could enforce their rights under the protected disclosure regime in the ET.
  • Denying whistleblower protection to a district judge was not a proportionate means of achieving a legitimate aim: indeed no legitimate aim was put forward.

Would interpreting the legislation to afford protection go against the grain, or be inconsistent with a fundamental feature of, the protected disclosure legislation? The Court had little difficulty in concluding that it would not. It was not a bar to that conclusion that it was inconsistent with the clear wording of the legislation requiring a contractual relationship. Such a deficiency can be remedied by reading in or reading down words. Indeed the way the deficiency is remedied does not turn on the precise form of words used. The legislation could be read as extending to a noncontractual employment relationship at least of the kind recognised in O'Brien v Ministry of Justice [2013] 1 WLR 522 (CA).

Beyond District Judges

Gilham was specifically concerned with district judges, but it can be expected that the decision will encourage the limits of protected disclosure to be tested on a much wider basis. Because Gilham was concerned with a claim against the State there was no need to consider the scope of the State's positive obligation under A.10 to protect freedom of expression as between private citizens. That issue was touched upon on in the Supreme Court in Bates van Winkelhof v Clyde & Co LLP [2014] ICR 703, another whistleblowing case. Whilst acknowledging the line of cases to the effect that the State could be under a positive obligation, Baroness Hale cautioned that, compared to the position where there is a negative obligation on the State not to breach Art.10 rights, it was "a little more difficult to assess whether and when this is necessary in order to give effect to the positive obligations of the state and thus to afford one person a remedy against another person which she would not otherwise have had." But given the careful balance inherent in the protected disclosure legislation, with its gradated protection according to whom the disclosure is made, it is at least strongly arguable that a protection should apply in a range of circumstances.

Volunteers, secondees and applicants

Following on from Gilham one obvious area of focus is on the gaps as to who is protected. Likely areas of controversy include:

  • Volunteers: Once it is accepted that there is no necessary requirement for a contractual relationship, that begs a question as to why volunteers should be outside the scope of protection. The argument might be made that, as in Gilham, the difference in treatment is based on contractual status only, so that reliance can be placed on Art.14 together with Art.10, and that the wholesale exclusion from protection is not proportionate to any legitimate aim. That said, in Gilham there was a ready comparison with the already established acceptance in O'Brien v Ministry of Justice [2013] 1 WLR 522 (CA) that, for the purposes of part-time workers protection, a district judge could be a worker. By contrast volunteers who do not have a contractual relationship have been held by the Supreme Court to fall outside the scope of protection under discrimination provisions: X v Mid Sussex Citizens Advice Bureau [2013] 1 All E.R. 1038. Whether the arguments that prevailed in relation to the scope of discrimination provisions would carry the day in relation to Art. 10 rights remains to be tested.
  • Secondees: In some cases the issue is not whether the whistleblower is a worker at all, but whether s/he is a worker of the party alleged to have subjected the worker to a detriment. That may arise where the worker is seconded to a principal but the contractual relationship is only with the third party. In Bamieh v Eulex Kosovo and others UKEAT/0268/16/RN, 19 January 2018 it was suggested that the decision in Sharp v The Bishop of Worcester [2015] EWCA Civ 399 established that there needs to be a contractual relationship with the putative employer. If that really was the effect of the decision2, it is a potentially significant gap in protection in a case where a secondee is subjected to discrimination by the principal. It also leads to problems in bringing claims against co-workers due to the need to identify a common employer. Could Art.10 step in to fill the gap in protection?
  • Applicants for employment: In some cases a major deterrent to blowing the whistle may be the concern that future prospective employers will be disinclined to employ a whistleblower. On its face the legislation does not provide protection to applicants for employment other than in the NHS3. Given the strength of the interpretative obligation under s.3 HRA the wording of the legislation need not be a bar. Nor would protection seem to go against the grain of the legislation.

Future disclosures, perceived disclosures, and association with disclosures

Beyond the areas of worker status the issue arises as to whether Art.10 could be relied upon to address other limitations in the whistleblowing legislation. That was placed in sharp focus in Bilsbrough v Berry Marketing Services Ltd Case No. 1401692/2018, 5.7.19. In that case an ET relied upon Art.10 to hold that protection could extend to someone who was considering making a protected disclosure. The ET noted that otherwise there could be a perverse incentive to employers who discovered a worker was preparing to make a protected disclosure to sanction the worker as a deterrent, or even to take pre-emptive action and dismiss the prospective whistleblower. The ET also observed that, given the requirement for reasonable belief, there might in some cases be a need for the worker to research the position, and it could have a major chilling effect if a worker could be subject to a detriment for doing so. The ET reasoned that:

  • the positive obligation on the State to protect freedom of expression extended to cover that situation;
  • the interference with free expression was not justified;
  • a compliant interpretation would not go against the grain of the legislation; and
  • the legislation could be construed as applying where a worker was subjected to a detriment on the grounds of considering making a protected disclosure.

If it is correct, that conclusion has far reaching implications. It is a short step to extending protection to cases where it is perceived (even if incorrectly) that a person has made a protected disclosure, or was preparing to do so but decided against it, or where the worker did not make the disclosure but only supported someone else who did, or assisted them to make the disclosure, such as by researching the matters related to it. In each of those instances it is not difficult to see that the limits of protection is problematic. Equally, the concern in Bilsbrough as to the importance of protecting steps to research a disclosure raises the possibility that Art.10 could be relied upon to challenge the long established distinction between detriment by reason of a disclosure and conduct closely associated with it: see Bolton School v Evans [2007] ICR 641 (CA). But to extend protection in this way would be a major step beyond the sort of approach adopted in Gilham. It would, we suggest, raise a real tension with a fundamental feature of the legislation which requires that the worker shows that she or he made a protected disclosure. That fundamental feature is reflected in the approach that once a protected disclosure is established, it is no answer for an employer who subjects a worker to a detriment on grounds of the disclosure, to say it did not realise that there had been a protected disclosure: see Beatt v Croydon Health Services NHS Trust [2017] IRLR 748 (CA). Without it first being established that there was a protected disclosure it will often be difficult to measure whether there was the requisite reasonable belief. The problem would be most acute in relation to cases where the worker had never contemplated making a disclosure or had decided that the facts did not justify the making of a disclosure. But it would not be confined to such cases. The danger is of undermining the carefully gradated scheme for protected disclosure protection. Equally the distinction that can be drawn between a disclosure and some other conduct, or even the manner in which it is made, may be said to be an integral part of the balance struck between the interests of employer and employee.

Conclusion

The reasoning in and result of Gilham will encourage claimants to test the extent to which the Courts are prepared to exercise the strong interpretative power under s. 3 HRA in other aspects of whistleblowing law. It is right to say that, of the range of possible advances in whistleblower protection, the extension to cover judicial office holders might be regarded as low hanging fruit. It had the advantages of the recognition of worker status in other contexts and that it was a case of direct interference by the State. More difficult but potentially far-reaching challenges to limits on the scope of protection lie ahead.