Gilham v Ministry of Justice

An office-holder may also work under a contract, but office and employment are not mutually exclusive categories. The question is determined by construing the manner of appointment, the governing rules and terms, and the factual background. Contractual features such as remuneration, mutual obligations and control may equally arise from the office itself. A contract should not be implied merely because it would provide employment protection.

Where legislation defines “worker” by reference to a contract, Employment Rights Act 1996, s.230(3) cannot be extended under the Human Rights Act 1998 to include every employment relationship. Judicial office-holders may have adequate statutory and constitutional safeguards for freedom of expression without access to the statutory whistleblowing regime.

District Judge Gilham appealed against the Employment Tribunal’s decision that she was an office-holder but did not work under a contract of employment or for services. She sought protection under s.47B of the Employment Rights Act 1996 after alleging whistleblowing detriment.

The appeal concerned whether the statutory appointment and associated terms created an express or implied contract, and whether s.230(3) had to be read compatibly with Article 10 of the Convention so as to include an employment relationship without a contract.

1. Appeal dismissed. The Employment Judge applied the correct legal approach and made no error of law.

2. For an acknowledged statutory office-holder, the existence of offer, acceptance, consideration and mutuality of obligations does not determine whether a contract exists. Those features may be equally consistent with appointment to an office which itself creates the legal relationship.

3. The relevant inquiry is the manner of engagement and the character of the rules or terms governing service, construed with the factual background. The court must decide whether the incidents of the relationship are characteristic of a contract and, if so, whether it is a contract of employment or for services. The statutory nature of the office is relevant but does not automatically exclude a parallel contract.

4. On the facts, the Claimant’s appointment was effected in the language of office. Her duties, functions and authority arose from statute and statutory rules. The terms of service were incidental to the office and were not privately negotiated. Tenure and removal were governed by statute, so the relationship was not dependent on the will of the parties. She was therefore an office-holder only.

5. No contract could properly be implied. The relationship was fully explained by the statutory and constitutional arrangements, and whistleblowing protection did not make implication necessary. The Claimant had other statutory and institutional safeguards.

6. Section 230(3) could not be read under s.3 of the Human Rights Act 1998 to include a general category of persons in an employment relationship without a contract. Contractual status was a fundamental feature of the statutory scheme. Parliament had separately and carefully extended the meaning of worker in s.43K for limited circumstances.

7. Recognising a contract would not itself undermine judicial independence. That independence was protected by statutory safeguards, the judicial oath, security of tenure, disciplinary procedures and constitutional conventions. Decision-making independence was distinct from administrative control over judicial work.

• Employment Appeal Tribunal: dismissed the appeal and upheld the Employment Tribunal’s conclusion that the Claimant was an office-holder only.
• Employment Tribunal: concluded that a District Judge did not work under a contract of employment or for services and rejected the Human Rights Act argument.