Whistleblowing protection extended to office holders

Gilham v Ministry of Justice

Excluding judges – and all office holders – from whistleblowing protection is a breach of their human rights.

Background

District Judge Gilham raised several complaints relating to the impact of budgetary cuts on the administration of justice which she alleges amount to qualifying disclosures under the Employment Rights Act 1996, s 43B. She also claimed that she had been subjected to various detriments for having done so, including bullying and being undermined by other judges and court staff.

The substantive aspects of her case have yet to be heard because a tribunal, the EAT and the Court of Appeal held that judicial office holders are not ‘workers’ as defined by ERA 1996, s 230(3)(b), often called ‘limb (b) workers’. She appealed.

Supreme Court decision

Her appeal was allowed.

The Supreme Court agreed with the courts below that judges do not work under any form of contract and therefore could not, on the face of it, benefit from the protections conferred by the 1996 Act. However, that wasn’t the end of the matter. Judge Gilham argued that the failure to extend whistleblowing protection to judicial office holders was a violation of her rights under articles 10 and 14 of the European Convention on Human Rights – and the Supreme Court agreed with her.

The 1996 Act therefore had to be interpreted so that Judge Gilham was a worker. The suggested construction was to include within limb (b) workers ‘an individual who works or worked by virtue of appointment to an office whereby the office holder undertakes to do or perform personally any work or services otherwise than for persons who are clients or customers of a profession or business carried on by the office holder’.

Link to judgment: https://www.bailii.org/uk/cases/UKSC/2019/44.html

Comment

This is a judgment with significant ramifications – it has the potential to widen the scope of the use of Convention rights in the context of employment law. The Supreme Court could have stipulated that its decision only applied to judges. It did not. It would appear therefore that its interpretation of the law covers other non-contractual office holders, for example company directors and board members. Whistleblowing protection has been conferred potentially on many thousands of people hitherto beyond its scope.