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Gilham v. Ministry of Justice

Closed Expands Expression

Key Details

  • Mode of Expression
    Written speech
  • Date of Decision
    October 16, 2019
  • Outcome
    Decision - Procedural Outcome, Remanded for Decision in Accordance with Ruling
  • Case Number
    [2019] UKSC 44
  • Region & Country
    United Kingdom, Europe and Central Asia
  • Judicial Body
    Supreme (court of final appeal)
  • Type of Law
    Employment Law/Workplace, International/Regional Human Rights Law
  • Themes
    Protection of Sources
  • Tags
    Whistleblowing, Members of the Judicial Branch

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Case Analysis

Case Summary and Outcome

The Supreme Court of the United Kingdom ruled the Employment Rights Act 1996 (the Act) should be read and given effect so as to extend its whistle-blowing protection to the holders of judicial office. District Court Judge Gilham sought protection under the Act after suffering retribution for submitting a formal grievance documenting negative impacts of severe budget cuts on the functioning of the court system. The Employment Tribunal, the Employment Appeal Tribunal, and the Court of Appeal all declined to extend protections on the ground that judicial appointees did not fit the definition of “workers” under the Act. Although the Supreme Court agreed with that determination, it found that the facts clearly pointed to a violation of her freedom of expression under Article 10 of the European Convention (ECHR). Therefore, the exclusion of judges from whistle-blower protections was in breach of the prohibition of discrimination under Article 14 read with Article 10 of the ECHR. Finding no legislative conflicts, the Supreme Court found judges should be included as “workers” under the Act and that Gilham was entitled to her claim.


Facts

The appellant, Gilham, is a district judge appointed in 2006 who subsequently worked at various County Courts.

In 2010, major cost cutting reforms were announced. The appellant raised a number of concerns relating to the cuts, in particular about the lack of appropriate and secure courtroom accommodation, the severely increased workload placed upon the district judges, and administrative failures. She raised these with the local leadership judges and senior managers in Her Majesty’s Courts and Tribunals Service and eventually in a formal grievance. [para. 5] On raising these complaints, she suffered a variety of harms including, “a significant delay in investigating her grievance; being seriously bullied, ignored and undermined by her fellow judges and court staff; being informed that her workload and concerns were simply a “personal working style choice”; and inadequate steps to support her in returning to work.” [para. 7]

Gilham argued to be covered by the definition of “worker” under Section 230(3)(b) of the 1996 Employment Rights Act (the Act) in order to claim protection given to whistler-blowers under the Act. Section 230(3)(b) defines a worker as an individual who works under “any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services  for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.” The Ministry of Justice or the respondent objected that the appellant was not a “worker” as defined by Section 230(3)(b) of the 1996 Act.

At a preliminary hearing, the Employment Tribunal judge held that she was not a worker under the Act and it was not possible to read or give effect to Section 230(3)(b) so as to give her the requested protections. It was further noted that although judges are considered workers under European Union law, the provisions at issue were not derived from EU law. Therefore, there was no requirements for the national law to conform to European standards. Accordingly, she had no protection against infringement of her right to freedom of expression under Article 10 of the ECHR. On appeal, The Employment Appeal Tribunal also held that she was not a worker and that it was not necessary to consider reading Section 230(3)(b) to include the judiciary as there were already adequate safeguards in place to protect judges.

The Court of Appeal also dismissed Gilham’s argument that “denying her whistle-blowing protection was discrimination in the enjoyment of her right to freedom of expression and thus contrary to Article 14 of the ECHR read with Article 10.” [para. 10.]


Decision Overview

Lady Brenda Hale delivered the judgment for the five-judge bench of the UK Supreme Court.

The primary issues under consideration were as follows: (1) if a district judge qualifies as a “worker” or a “person in crown employment” for extending the protection given to whistle-blowers under the 1996 Act; (2) if not, would it be in violation of her rights in Article 10 of the ECHR or Article 14 of the ECHR read with Article 10; and (3) if so, what would be the remedy?

Gilham argued on the following points:

  • Gilham claimed to be covered by the definition of “worker” under Section 230(3)(b) of the 1996 Act and hence her complains should be considered as protected disclosures. Accordingly, she claimed to be entitled to the protection given to whistle-blowers under Part IVA of the 1996 Act, specifically Section 47B(1), which prohibits subjection to any detriment by the employer on making a protected disclosure.
  • On appeal before the Supreme Court, she raised a new point arguing that she is in “crown employment” under Section 191 of the 1996 Act. “Crown employment” means employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by a statutory provision. Protection under Part IVA of the 1996 Act is also available to people in crown employment. Accordingly, Section 191 is apt to give her the protection of Part IVA even if she is not employed under a contract.
  • Alternatively, she argued that her exclusion from whistle-blowing protection is a breach, either of her rights under Article 10 or under Article 14 read with Article 10 of the ECHR and that either Section 230(3)(b) or Section 191 of the 1996 Act should be read and given effect so as to bring her within that protection.

 On the issues of “worker” and “person in crown employment”

The Court held that a judge cannot be considered as a worker under the 1996 Act. Since the claim to be considered as a worker was made under Section 230(3)(b) of the 1996 Act, the main issue was if the work is performed pursuant to a contract with the recipient of that work or pursuant to some different legal arrangement. For determining if there is a legally binding contract to hold the office, one must look into the intention of the parties and the manner in which the judge was engaged [Preston (formerly Moore) v President of the Methodist Conference [2013] 2 AC 163]. The Court observed that although there was classic offer and acceptance in the manner of judicial appointment, the procedure was laid down in statute. Further, the terms were not subjected to negotiations between the parties. Hence, the essential components of the relationship were derived from the statute and were not a matter of choice or negotiation between the parties. The Court also observed that the appellant had difficulty in identifying her employer. These proceedings were brought against the Ministry of Justice. However, the appellant was in fact appointed by the then Lord Chancellor, while later district judges are appointed by Her Majesty the Queen. Constitutionally, the separation of power also militates against the contention that either of them intended to enter into a contractual relationship. The Court concluded that, “[t]aken together, all of these factors point against the existence of a contractual relationship between a judge and the executive or any member of it. Still less do they suggest a contractual relationship between the judge and the Lord Chief Justice.” [para. 21]

The Court observed that the definition of crown employment has two limbs: “employment under or for the purposes of a government department; and employment under or for the purposes of an officer or body exercising on behalf of the Crown functions conferred by a statutory provision.” The Court considered the reasons given earlier to disregard the judiciary as employed under or for the purposes of the Ministry of Justice. Further, the judges do not work “under and for the purposes of ” those functions of the Lord Chief Justice (who has certain statutory responsibilities) but for the administration of justice in the courts of England and Wales in accordance with their oaths of office. Hence, the Court held that judges cannot be considered within the purview of crown employment.

On the issues of human rights

The appellant also argued a violation of her right to freedom of expression under Article 10 of the ECHR, if the protection to whistle-blowers was not extended to judges. The Court observed that the types of detriments Gilham experienced in response to her public interest disclosure, such as bullying and victimization, would constitute an interference with her freedom of expression [para. 26]. However, there were not as strong protections for those detriments as there would be for dismissal or other disciplinary actions in retaliation for voicing an opinion in her judicial capacity. Admittedly, remedy for breach of the ECHR in the form of damages is available under Section 7 of the Human Rights Act 1998, but it would not have the effect of extending the specific protection of Part IVA of the 1996 Act to judges or other non-contractual office-holders at issue in the present case.

Additionally, the appellant argued a violation of Article 14 of the ECHR read with Article 10. Article 14 prohibits discrimination in the enjoyment of rights in ECHR on the grounds 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. Accordingly, the Court answered the following questions for determination of the violation: “(i) do the facts fall within the ambit of one of the Convention rights; (ii) has the applicant been treated less favourably than others in an analogous situation; (iii) is the reason for that less favourable treatment one of the listed grounds or some “other status”; and (iv) is that difference without reasonable justification – put the other way round, is it a proportionate means of achieving a legitimate aim?”

Summarily, the Court found that the facts clearly pointed to a violation of her article 10 rights and thus answered all the questions affirmatively. For answering the question (ii), the Court rejected the argument that judges are not in an analogous situation to employees and “limb (b)” workers. The Court observed that “what matters is that the [judge] has been treated less favourably than others in relation to the exercise or enjoyment of the Convention right in question, the right to freedom of expression.” [para. 31] For answering the question (iii), the Court considered that the constitutional position of a judge was a “recognizable status.” For answering the question (iv), the Court noted there is no evidence at all that either the executive or Parliament intended to exclude the judiciary from the protection of Part IVA. Further, no legitimate aim was put forth for the exclusion. In fact, extending whistle-blower protections to the judiciary could enhance their independence by affording them an avenue to make public interest disclosures internally, rather than publicly, which could risk drawing them into political debates. Therefore, the Court concluded that “the exclusion of judges from the whistle-blowing protection in Part IVA of the 1996 Act is in breach of their rights under Article 14 read with Article 10 of the ECHR.”

On the issue of remedy

The primary remedy for the incompatibility was the interpretive duty in Section 3 of the Human Rights Act 1998 [Ghaidan v Godin-Mendoza [2004] UKHL 30]. Section 3 states that the primary legislation must be read and given effect in a way which is compatible with the Convention rights. However, the interpretation should not go against the grain of the legislation in question or inconsistent with some fundamental feature of the legislation [Litster v Forth Dry Dock Engineering Co Ltd [1990] 1 AC 546]. [para. 39] The Court noted that the inclusion of judges within limb (b), such as disclosure to employer or others responsible for the conduct in question and prohibition on employer and fellow employees from subjecting the whistle-blower to any detriment, would not go against the grain of the legislation. The Court further noted that it would be worthwhile to explore additional mechanisms to resolve alleged public interest disclosures, as the existing grievance procedure policies for the judiciary were not effective to address the “systemic failures” at issue in the present case.

Taking into consideration Ghaidan v Godin-Mendoza [2004] UKHL 30 and O’Brien v Ministry of Justice (formerly Department for Constitutional Affairs) [2013] UKSC 6, the Court held that the 1996 Employment Rights Act “should be read and given effect so as to extend its whistle-blowing protection to the holders of judicial office.” [para. 44]

Therefore, the Court allowed the appeal and remitted the case to the Employment Tribunal on the basis that the appellant is entitled to claim the protection of Part IVA of the 1996 Act.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

The judgment upheld European Law in order to extend whistle-blower protections to the judiciary and therefore, will have wide ramifications on the application of whistle-blower protection under the employment laws in the United Kingdom. The Court recognized that the existing procedures and protections for judicial public interest disclosures were insufficient to address the types of detriments which Judge Gilham had experienced. By applying Article 14 of the ECHR read with Article 10 in order to expand whistle-blower protection to judicial appointees, the Court extended European Law to national legislation, which was not required by law to conform to European standards. The same reasoning may also be used for other non-contractual office-holders.

The Court further recognized that the judiciary had been denied protections available to other workers who wished to make public interest disclosures. Whistle-blower protections were seen as enabling greater independence for the judiciary and providing them with the necessary confidence to use public interest disclosures as a mechanism for oversight.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Related International and/or regional laws

National standards, law or jurisprudence

General Law Notes

Cases cited:

  • Preston (formerly Moore) v President of the Methodist Conference [2013] 2 AC 163
  • Ghaidan v Godin-Mendoza [2004] UKHL 30
  • Litster v Forth Dry Dock Engineering Co Ltd [1990] 1 AC 546
  • O’Brien v Ministry of Justice (formerly Department for Constitutional Affairs) [2013] UKSC 6

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

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