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Chambers & Partners
31/10/2016

EAT holds that Judges are not workers for the purposes of whistleblowing protection

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In Gilham v Ministry of Justice UKEAT/0087/16 the EAT has upheld an ET ruling that a Judge is solely an office holder and does not have a contract. She does not therefore qualify as a ‘worker’ under s.230(3) Employment Rights Act 1996. Judges consequently have no recourse to s.47B whistleblowing protection.

At first instance the Claimant had asked the ET to apply Ministry of Justice v O’Brien [2013] ICR 499, in which the Supreme Court, (following a preliminary reference to the CJEU), held that Recorders were workers for the purposes of part-time worker rights. The ET declined to do so on the basis that whilst such an approach was required for rights derived from EU law, it did not apply to purely domestic rights. There was no appeal against this finding to the EAT.

Instead the Claimant submitted that the relationship between District Judges and the Ministry of Justice possessed the typical features of a contract that would fall within s.230(3), such as offer, acceptance, consideration, mutuality of obligation and exchange of promises. She argued that the ET erred in not having adopted a simple approach based on the identification of these features.

In rejecting this argument Simler P relied upon the case law on the status of religious office holders and, in particular, Lord Sumption JSC’s judgment in Preston v President of the Methodist Conference [2013] 2 AC 162. Office-holder status and employment are not mutually exclusive and as the typical features of an employment contract are also often features of appointed office, focus on such features does not assist in determining the presence of a contract of employment or for services in such cases.

Whether or not such a contract exists is instead a question to be determined by reference to the manner in which the individual was engaged and the character of the rules, or terms, governing their service.

In determining that there was no contract Simler P relied upon the fact that a District Judge’s appointment was in the hands of the Crown, the terms of service were largely influenced by statute (and in no part emerged from private negotiation), ultimate managerial responsibility fell upon the Lord Chief Justice, and the Ministry of Justice had no power to determine the relationship.

The protection afforded by this final feature was also determinative of the second ground (which sought to imply a contract, on the basis of necessity, so as to ensure District Judges had whistleblowing protection). Simler P held that secure tenure, along with other safeguards of judicial independence, provided adequate protection both to avoid such a necessity and so as to protect judges’ freedom of speech.

A third ground, seeking to use the interpretative obligation at s.3 Human Rights Act 1998 to read in to s.230(3) words covering those in an employment relationship without a contract, was also rejected. Even if there had been a lacuna, and none was found in this case, Parliament has carefully defined who enjoys whistleblowing protection and this is an essential feature of the legislative scheme that precludes judicial creation of new categories of ‘worker’.

Ben Collins QC represented the Ministry of Justice and was instructed by the Government Legal Department.

To read the full judgment, please click here.

Gilham, judge, ministry of justice, ben collins QC, whistleblowing

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