Whistleblowing judges: protected by human rights?

18 October 2019 by Guest Contributor

Gilham (Appellant) v Ministry of Justice (Respondent) [2019] UKSC 44 – read judgment

The UK Supreme Court has unanimously granted an appeal by a district judge against the Court of Appeal’s decision that she did not qualify as a “worker” under the Employment Rights Act 1996 (the “1996 Act”), and therefore could not benefit from the whistleblowing protections it conferred.

In reaching its judgment, the Court held that the failure to extend those whistleblowing protections to judges amounted to a violation of the appellant’s right under Article 14 ECHR not to be discriminated against in her enjoyment of the Convention rights (in this case, her right to freedom of expression under Article 10 ECHR).

Background

The appellant, Claire Gilham, was appointed as a district judge in 2005. Post 2010, the courts suffered from major cost cutting reforms. The appellant raised concerns relating to these cuts, including the lack of secure and appropriate court rooms, her severely increased workload and other administrative failures. Her initial complaints to senior court managers and judges eventually developed into a formal grievance. These complaints, she argued, were “protected disclosures” under the 1996 Act and therefore she should not suffer any detriment in making them.

The appellant claimed that she in fact suffered considerable detriment: there was undue delay in investigating her grievance and she had been ignored, seriously bullied and undermined as a result of making the complaints. She claims that this treatment led to a severe degradation in her health, resulting in psychiatric injury and disability.  

In February 2015 she made a two-part claim in the Employment Tribunal: (i) for disability discrimination under the Equality Act 2010; and (ii) under Part IVA of the 1996 Act, which protects whistleblowers. The success of both of these claims depended on her being a “worker” within the meaning of s230(3) of the 1996 Act.

The case before the Supreme Court concerned the second claim: the Employment Tribunal determined as a preliminary issue that the appellant was not a “worker” under domestic law for the purpose of the whistleblowing provisions. It further held that it was not possible to give effect to s230(3) so as to give her protection against the infringement of her right to freedom of expression under article 10 ECHR. The Employment Appeal Tribunal and the Court of Appeal dismissed her appeals.

The issues before the Supreme Court

Two principal issues fell to be determined:

1. Whether the appellant qualified as a “worker” under domestic law and could therefore rely on the whistleblowing protections provided under Part IVA of the 1996 Act.
2. If not, whether this amounted to discrimination against her in the enjoyment of her right to freedom of expression under article 10 ECHR, read with article 14 ECHR?

1. The first issue: is a judge a “worker”?

The Supreme Court agreed with the Court of Appeal that the appellant was not a “worker’ under the domestic legislation. First, her contractual duties derive from statute, rather than from negotiation with her employer. Second, it was in this case difficult to identify her employer (the Court noted the judiciary is in fact divided between the Lord Chancellor, as a Minister of the Crown, and the Lord Chief Justice, as Head of the Judiciary). Third, the judiciary operates independently of Parliament and the executive, which indicates that the there was no intention that the two bodies intended to form contractual relations.

The appellant also argued that she was a “person in Crown employment” under s191(1) of the 1996 Act. The Court did not accept this either, noting that judges do not work under or for the purposes of the functions of the Lord Chief Justice, but for the administration of justice in accordance with their oaths of office.

2. The second issue: human rights  

The appellant’s case was that by not being afforded the whistleblowing protections under the 1996 Act, her right to freedom of expression under article 10 ECHR had been breached. Lady Hale said one could see how this might be the case:  

It is not enough to say that judges are well protected against dismissal and other disciplinary action if they speak their minds. They are not so well protected against the sort of detriments which are complained about in this case – bullying, victimisation and failure to take seriously the complaints which she was making. [Para 26]

The appellant further argued for a breach of her right to the enjoyment of her Convention rights under article 14 ECHR, read with article 10. Article 14 provides that:

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.

Here, the Court identified four questions to be answered: (i) whether the facts fall within the scope of article 10; (ii) whether the appellant had been treated less favourably than others in an analogous situation; (iii) if so, was the less favourable treatment due to one of the listed grounds or any “other status”; and (iv) was such a difference in treatment a proportionate means of achieving a legitimate aim.

The Court found that the facts of this case clearly engaged the appellant’s article 10 rights (which might in fact have been breached, though this did not need to be decided here). The appellant had also clearly been denied protection from any detriment, as is the right enjoyed by other employees who make protected disclosures under the 1996 Act. 

As to issue (iii), the court found that an “occupational classification” is capable of falling under the definition of any “other status”.

In considering question (iv), the Court acknowledged that the analysis often requires a sensitive balancing act between rights of the individual and the needs of society. In such difficult cases, the court may need to defer to the “considered opinion” of the elected decision maker. In this case however, the Court said there was no evidence that Parliament even applied its mind to whether or not the whistleblowing protections conferred under the 1996 Act should include judges. It followed that no legitimate reason had been provided as to why the judiciary were treated differently to other employees in this context. Indeed, Lady Hale observed that whistleblowing protections for judges might in fact enhance their independence.

Conclusion

The Court concluded therefore that the exclusion of judges from the whistleblowing protection in Part IVA of the 1996 Act is in breach of their rights under article 14, read with article 10 of the ECHR. There was no need to make a declaration of incompatibility, as it would not be going “against the grain” of the 1996 Act to include judicial office-holders within the definition of a worker. 

Accordingly, the Court remitted the case back to the Employment Tribunal, on the grounds that the appellant is entitled to claim the protections under Part IVA of the 1996 Act. 

Comment

This judgment will be received by many as a welcome corrective to domestic equality law and a valuable safeguard for judges. It is important that judges are able to express their concerns confidently and without fear of detriment, especially in a justice system struggling from the impact of deep cuts to its funding, 

The decision has potentially far reaching consequences. It significantly widens the scope of those entitled to whistleblowing protections, envisaging the same protections being afforded to other officeholders, such as members of the clergy and statutory directors. It opens the door to extending the definition of “worker” to other classes of non-contractual employment. The judgment’s influence may well reach beyond whistleblowing cases: claimants in non-contractual employment relationships might now look to plead a breach of article 14 in respect of Convention rights raised in other contexts, from unfair dismissal to trade union rights claims.

Will Hanson is a solicitor specialising in immigration, public law and human rights.