A district judge who raised concerns about court cuts was not, on the ordinary wording of the Employment Rights Act 1996, a “worker” or a person in Crown employment, so its whistle-blowing protection did not apply to her. The Supreme Court held that excluding judges from that protection discriminated against them in the enjoyment of freedom of expression and had not been justified. The Act must therefore be read so that holders of judicial office can claim the protection, and her whistle-blowing claim was returned to the Employment Tribunal.
Ms Gilham held office as a district judge. Although the appointment letter set out working arrangements which resembled employment terms, statute governed the office, its tenure and its core conditions.
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She raised concerns about workloads, court accommodation and administrative failures, first with the judiciary and court administration and then through a formal grievance.
She alleged that she suffered detriments because of those disclosures. The issue in the Supreme Court was whether she could bring such a claim. The truth of the allegations and the reasons for any treatment remained matters for the tribunal.
In February 2015 she brought two Employment Tribunal claims, both depending on worker status or equivalent protection. Her disability-discrimination claim comes from EU law. Following O’Brien, a judge is a worker for EU-law purposes, so that claim would continue anyway. Whistle-blowing protection does not come from EU law, so the domestic definition did not have to be read to match EU law. A judge could therefore have different status for different employment rights.
Why the ordinary wording did not apply
Under section 230(3), a worker works under a contract of employment or another contract personally to perform work for someone who is not a client or customer of the worker’s business. Ms Gilham did not claim a contract of employment. It was agreed that she personally performed work and that the recipient was not her client. The issue was whether she did so under a contract.
An office is a permanent position existing independently of its holder. Some office-holders also have contracts; others do not. As the court had held in Preston, the question is whether the parties intended the burdens and benefits to be contractual, judged from the manner of engagement, the source and character of the governing rules, and the context.
Lady Hale, with whom Lord Kerr, Lord Carnwath, Lady Arden and Sir Declan Morgan agreed, accepted that the letter looked like an offer which Ms Gilham accepted. Appointment is nevertheless statutory. Later judges are appointed by the Queen on the Lord Chancellor’s recommendation after selection by the Judicial Appointments Commission. The documents were not expressed as a contract, and some provisions stated what the Lord Chancellor expected or regarded as essential. Deployment may be discussed locally, but the Lord Chief Justice is ultimately responsible. Pay, pensions, retirement and removal for misbehaviour or inability are statutory, not individually negotiated.
She also had difficulty identifying an employer. The claim was against the Ministry of Justice, although she was appointed by the Lord Chancellor and responsibility is divided between the Lord Chancellor and the Lord Chief Justice. Many complaints concerned deployment and were directed to local judges or court-service officials. Separation of powers would not make a contract impossible, but it told against either side intending one. There was no contract with the executive, and still less with the Lord Chief Justice.
The separate argument based on Crown employment also failed. The statutory provisions did not place a district judge in Crown service in the relevant sense.
Freedom of expression and discrimination
Leaving judges outside Part IVA could interfere with freedom of expression under article 10. Protection from dismissal or discipline does not answer alleged bullying, victimisation or a failure to take complaints seriously. A Human Rights Act damages claim would not, however, extend Part IVA or allow this tribunal claim to proceed.
The successful argument was article 14 read with article 10. The facts fell within freedom of expression; Lady Hale said there may well have been an article 10 breach, although article 14 does not require one. Ms Gilham was treated less favourably than employees and other workers: they are protected against any detriment, may use the Employment Tribunal, and may claim compensation for injury to feelings as well as health. Saying that judges are by definition not comparable confuses the treatment with its reason. The reason was her status as a non-contractual office-holder, an occupational classification reinforced by the constitutional position of a judge.
The Ministry sought a broad margin for legislative social policy, particularly because the ground was less suspect than race, sex or sexual orientation. Lady Hale rejected that justification. The especially restrained approach had been applied to welfare benefits, not consistently to employment policy. There was no evidence that Parliament or the executive had considered judges, although groups such as police officers had been considered, so there was no considered decision to respect. No legitimate aim was identified. Denying the protection had not been shown to support judicial independence. Responsible internal disclosures are meant to avoid people feeling driven to go public, and judges are vulnerable to workplace detriments too. Without an aim, proportionality could not be judged. The exclusion therefore breached article 14 read with article 10.
How the Act was read
Section 3 of the Human Rights Act requires compatible interpretation where possible. Following Ghaidan v Godin-Mendoza, that goes beyond ordinary construction, but the court cannot contradict a fundamental feature or go against the grain of the legislation.
The Ministry said that reading section 230(3)(b) to include judges would do that. Lady Hale disagreed. The reading would not confer every worker’s right, and section 3 applies only to the incompatible exclusion. Judges already receive some worker-type protection under EU-derived rights and the Equality Act. The Court of Appeal had been inclined to think that requiring a contract, and thus excluding a mere office-holder, was not fundamental; Lady Hale agreed.
The provision can include someone who personally performs work by virtue of appointment to an office, otherwise than for that person’s own clients. The relevant disclosure may be to leadership judges, HMCTS or the Ministry, depending on the conduct, and fellow judges and others able to cause detriment are covered. Whether another route was more appropriate can still matter to the public-interest test. Ms Gilham had used the grievance procedure, and the investigating judge, Tomlinson LJ, had commented that it was unsuitable for the systemic failures alleged. The equivalent Northern Ireland whistle-blowing provisions must be read in the same way. The 1996 Act itself extends to England and Wales and Scotland, but not Northern Ireland.
Verdict: The Court unanimously allowed the appeal. Ms Gilham could claim whistleblowing protection under Part IVA of the Employment Rights Act 1996. The Employment Tribunal had to decide whether she made protected disclosures and suffered detriments because of them.
