Gilham v Ministry of Justice

Holding an office does not itself prevent a parallel contract, but contractual status depends on the appointment, governing rules, dealings and parties’ intentions. A district judge’s core rights and obligations arose from statute and the office, including functions, tenure, salary and pension. No parallel contract existed, so the judge was not a “worker” under section 230(3) of the Employment Rights Act 1996. Article 10 did not require access to Part IVA because section 7 of the Human Rights Act 1998 provided an adequate remedy for unlawful detriment. Article 14 was not infringed: the statutory distinction concerned contractual status, judges were not in an analogous position to ordinary workers, and Parliament’s policy was not manifestly without reasonable foundation.

The appellant was a district judge who brought whistleblowing proceedings against the Ministry of Justice under Part IVA of the Employment Rights Act 1996, alleging detriments for protected disclosures about court working conditions. The Employment Tribunal dismissed the claim because she was an office-holder and not a worker under section 230(3). The Employment Appeal Tribunal dismissed her appeal in a judgment reported at [2017] ICR 404.

Before the Court of Appeal, she argued that she worked under a contract, or alternatively that sections 3 and 4 of the Human Rights Act 1998 required access to the statutory whistleblowing regime to protect rights under Articles 10 and 14. The central issues were whether a district judge had a parallel contract, whether Article 10 required a remedy under Part IVA, and whether exclusion from that regime was discriminatory.

The appeal was dismissed.

1. Contractual status. An office-holder may also be party to a contract for performing the duties of the office, including statutory duties. The question is determined by ordinary contractual analysis, considering the manner of appointment, the governing documents and rules, the factual background, the parties’ intentions and the true source of the rights and obligations. The description of the relationship as an office is relevant but neither conclusive nor irrelevant.
2. In the case of a district judge, the core functions, judicial oath, tenure, removal provisions, salary and pension rights derived from statute or the office. The appointment was expressed in unilateral public-law terms. The terms of service extending beyond the immediate judicial role were incidental to the office, and there was no sufficient indication that the parties intended a parallel contract with the Lord Chancellor or Ministry of Justice. The appellant was therefore not a “worker” under section 230(3)(b) of the Employment Rights Act 1996.
3. Judicial independence was not inherently incompatible with contractual status. It nevertheless remained relevant that an office-only relationship maintained visible constitutional distance from the executive. The distinction between independence in decision-making and administrative arrangements for judicial work did not alter the contractual analysis.
4. Article 10. The appellant was protected against dismissal, disciplinary sanctions and salary reduction for responsible whistleblowing. In addition, section 7 of the Human Rights Act 1998 provided an adequate remedy for other unlawful detriments. Article 10 required an effective remedy, not a remedy in a particular forum or in the same form available under Part IVA. The court was inclined to think that section 3 might permit section 230(3) to extend to an employment relationship, but that question was unnecessary and was not decided.
5. Article 14. Applying the structured analysis associated with Michalak and Ghaidan, the subject matter fell within Article 10 and there was a difference in treatment. However, the statutory distinction was based on the existence of a relevant contract, not on judicial or office-holder status. Judges also occupied a unique constitutional position and were not in an analogous situation to ordinary workers. In any event, Parliament’s choice of protection was a social and economic policy choice which was not manifestly without reasonable foundation. There was no incompatibility requiring a different construction under section 3.

1. Court of Appeal (Civil Division): dismissed the appeal on 21 December 2017.
2. Employment Appeal Tribunal: dismissed the appellant’s appeal from the Employment Tribunal in a judgment handed down on 31 October 2016, reported at [2017] ICR 404.
3. Employment Tribunal: dismissed the whistleblowing claim because the appellant was not a “worker” under section 230(3) of the Employment Rights Act 1996.