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03/01/2018

Gilham v Ministry of Justice: Court of Appeal rules that Judges are not ‘workers’

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Gilham v Ministry of Justice [2017] EWCA Civ 2220

In this important recent judgment, the Court of Appeal unanimously held that judges are not “workers” within the meaning of section 230(3) of the Employment Rights Act 1996, and therefore are not entitled to protection from whistleblowing under the provisions of that Act. The Court of Appeal also held that the absence of a remedy for whistleblowing under the 1996 Act did not amount to a breach of a judge’s rights under Article 10 or Article 14 ECHR.

Background

The Claimant is a District Judge. She brought proceedings in the Employment Tribunal claiming that she had been subjected to various detriments for whistleblowing contrary to section 47B of the 1996 Act. The disclosures related to alleged poor and unsafe working conditions, and an excessive workload in the courts where the Claimant worked.

Only a “worker” can bring a whistleblowing claim (section 47B(1)). The Claimant sought to establish that she was a worker as defined by section 230(3) on the basis that she worked under a contract with the Respondent. Alternatively, she argued, the unavailability of a remedy for whistleblowing detriment under the 1996 Act meant that she was deprived of an effective remedy for a breach of her right to freedom of expression under article 10 of the European Convention on Human Rights, and it was necessary to apply section 3 of the Human Rights Act 1998 to interpret section 230(3) of the 1996 Act to ensure that she had an effective remedy.

Both of these arguments were dismissed by the Employment Tribunal and the Employment Appeal Tribunal. The Claimant appealed to the CA, and obtained permission to advance a further argument based on Article 14 ECHR.

Decision of the Court of Appeal

In a single judgment (delivered by Underhill LJ but to which Gloster and Singh LJJ also contributed), the CA unanimously dismissed the Claimant’s appeal. Their reasoning on each of the three main issues is set out below.

1. Was the Claimant in a contractual relationship with the Lord Chancellor?

The Court first analysed the decisions relating to the employment status of members of the clergy, who are also ‘office-holders’, (paragraphs [23]-[39]) and noted that these cases established that “there is nothing inconsistent in the holder of an office being party to a contract to perform the duties of that office… Whether there was such a contract in any given case depends, in the usual way, on an analysis of the dealings between the parties against the relevant background” (paragraph [40]).

The CA analysed the various arguments in some depth (paragraphs [64]-[73]) and concluded that “the essential point appears to us to be that the core rights and obligations of a judicial office-holder derive from statute and not from any relationship with the Lord Chancellor” (at paragraph [66]). They noted that the functions of a District Judge, the duration of the appointment, the power to determine salary and pension rights all derived from statute. As such, there was no analogy with the right of an employer to terminate a contractual relationship and so the Claimant was not in a contractual relationship with the Lord Chancellor.

The CA also accepted (at [73]) that this arguably left the law in a somewhat incoherent state: whilst a judge was not a “worker” in the context of the purely domestic whistleblowing provisions, the decisions in O’Brien v Ministry of Justice [2017] ICR 1101 (concerning the entitlement of part-time judicial office holders to occupational pensions) confirmed that a judge was a “worker” in the context of EU law. However, the CA stated that, even if there were such an anomaly, only Parliament could remedy it.

2. Was it necessary to construe section 230(3) of the 1996 Act to protect the Claimant’s article 10 rights?

The Claimant accepted that a district judge was secure from removal on whistleblowing grounds, and that a district judge could not have his or her salary reduced for whistleblowing. The arguments in the CA centred around whether section 7 of the HRA 1998 (which provides for a right of action in the ordinary civil courts for a breach of article 10 by a public authority) provided an adequate remedy for any breach of a judge’s article 10 rights suffered as a result of any other whistleblowing detriments. The CA held that it did provide an adequate remedy because: –

• Whether the whistleblowing provisions under the 1996 Act were applicable or not was unlikely to have any effect on the way judicial colleagues would act regarding responsible disclosures.
• The Court was “far from convinced” that a HRA 1998 remedy would offer any less compensation than a 1996 Act remedy.
• The mere fact that an ET might be more specialist in considering whistleblowing claims than an ordinary civil court does not mean that the remedy in a civil court is not adequate or effective.

Although the CA did not need to do so, they stated that if they were wrong as to the above, it would be possible to construe section 230(3) to extend to an employment relationship of this kind pursuant to s.3 HRA 1998 (at paragraph [90]).

3. Was it necessary to construe section 230(3) of the 1996 Act to protect the Claimant’s article 14 rights?

The CA helpfully summarised the principles applicable to an article 14 case at paragraphs [96]-[114] of the judgment. Applying the test from the leading case of Wandsworth LBC v Michalak [2002] EWCA Civ 271, it held that: –

• There is no dispute that the facts fall within the ambit of one or more of the Convention rights. They fall within the ambit of article 10;
• There is no dispute that there is a difference in treatment in respect of that right between the complainant and others put forward for comparison, because others could rely on the whistleblowing provisions of the 1996 Act;
• There was no difference in treatment based on one of the grounds proscribed by article 14. The difference was not on the grounds of any “other status” because section 230(3) does not draw a distinction between office-holders (or judicial office-holders) and others, but draws a line based on whether the individual works under a relevant contract within the meaning of that provision. That distinction has nothing to do with “personal” characteristics and therefore cannot amount to any “other status”;
• The comparators put forward, namely those who can rely on the whistleblowing provisions, were not in an “analogous situation” to the Claimant. For important constitutional reasons, Judges benefit from substantial protections which are not available to workers, e.g. security of tenure until retirement age. Furthermore, the Claimant would be able to pursue a claim under section 7 of the HRA 1998, and at least some of those who would be entitled to protection under the 1996 Act would not be able to pursue a claim under the HRA 1998 (e.g. if they worked in the private sector).
• In any event, the difference in treatment is objectively justifiable. This definition of “worker” is used elsewhere in a variety of contexts in employment legislation, the discrimination in question here is not on any of the core grounds prohibited by article 14 (such as race or sex), and judges have a remedy pursuant to section 7 of the HRA 1998.

The Court of Appeal refused permission to appeal. It is not yet known whether the Claimant will renew the application permission before the Supreme Court.

Please click here to read the full judgment.

Gilham, Ministry of Justice, Court of Appeal, whistleblowing