In Gilham v MOJ the Supreme Court considered the novel question whether judges are workers for the purposes of the protection against whistle blowing detriment in the Employment Rights Act 1996.
It is now well-established, since the decisions of the CJEU and Supreme Court in O’Brien v Ministry of Justice [2017] ICR 1101, that judges are workers for the purposes of EU law and EU-derived domestic law – in particular discrimination law under the Equality Act. Whistle blowing legislation, however, is not EU-derived, and the question arose whether the domestic definition of worker in section 230(3) of the ERA can apply to judges.
The ET, EAT and CA had all held that it did not, and the Supreme Court agreed. The s.230(3) definition requires a contract between the worker and employer, and the Court held that it is impossible to find a contract in these circumstances. The essential features of a judge’s work are governed not by agreement but by statute; indeed it is difficult to identify who such an agreement might be with – judges may be appointed by one party (the Crown), have their work arranged by another (local leadership judges), rely on another for training (the Lord Chief Justice), and on yet another for facilities (the Secretary of State). Nor is there an “employer” with power to dismiss – a judge can only be removed from office in accordance with statutory requirements.
The Supreme Court have therefore conclusively ruled that judges are not workers in the domestic sense in that they do not work pursuant to contracts.
The judge raised a new argument for the first time in the Supreme Court, namely that judges are in “Crown employment” as defined by s.191 of the 1996 Act. This category of employment status has been used to provide employment rights to civil servants. The Court confirmed that judges are not in Crown employment. They work for the administration of justice in the courts of England and Wales in accordance with their oaths of office – they do not work under or for the purposes of a government department.
The judge’s appeal nevertheless succeeded – on a ground first raised by Protect, as Intervener, in the Court of Appeal, namely that the exclusion of judges from whistle blowing protection would amount to a breach of the judge’s rights under Article 14 ECHR read with Article 10.
There is no doubt that whistle blowing claims fall within the ambit of Article 10 (the right to freedom of expression) since they concern allegations of detriment arising from making disclosures, i.e. exercising rights of free expression. The question for the Court, therefore, was whether the exclusion of judges from Part IVA of the 1996 Act amounted to discrimination contrary to the ECHR. The Court’s conclusion was that it did.
The Court held that being a judge amounted to an “other status” for the purposes of Article 14. An occupational classification is capable of amounting to a status for the purposes of Article 14, and the constitutional position of a judge reinforces the view that holding judicial office is of itself a status.
There is no doubt that judges are treated differently from workers for these purposes. That, indeed, was the basis of the claim, namely that judges should be entitled to protection which is available to workers and from which (as above, given that they do not have contracts) non-workers are excluded. The key question, therefore, was whether that difference in treatment was justified.
The Court held that it was not. In particular the Court was concerned that judicial independence would not be enhanced by an absence of protection for judges complaining of detriment as a result of making public interest disclosures. While there is a range of protections for judges from dismissal or loss of pay, detriments which fall short of that are in particular not justiciable in the employment tribunal. It was on this basis that the appeal succeeded.
The Court’s conclusion was that Part IVA should be treated as applying to judicial office holders even though they are not workers.
Judge Gilham’s factual allegations have not yet been considered. The claim will be heard in the employment tribunal, most likely next year.
Ben Collins QC and Robert Moretto represented the Ministry of Justice in the Supreme Court and in the course of the proceedings below.
To view the full judgment, please click here.
