Gilham v Ministry of Justice

The Court of Appeal dismissed the appeal and held that the district judge was not a "worker" within the meaning of section 230(3) of the Employment Rights Act 1996 and so could not bring a Part IVA whistleblowing claim under section 47B. The court applied established principles for distinguishing contractual employment from statutory office-holding, emphasising that the core rights and obligations of judicial office derive from statute (appointment, tenure, salary, removal and disciplinary processes) rather than from a private contract. The court accepted that an office-holder can in principle also be party to a contract (Percy) but, applying the later authorities (notably Preston), concluded that in this case the parties did not intend a contractual relationship.

The court also considered Convention issues. It held that the appellant’s article 10 rights (freedom of expression for whistleblowing) are adequately protected by other means, in particular by a remedy under section 7 of the Human Rights Act 1998 together with statutory safeguards for judicial independence, so there was no need to read section 230(3) down under section 3 HRA or to make a declaration of incompatibility under section 4. Finally the court rejected an article 14 complaint: Parliament’s line-drawing (defining the statutory category of "worker" by reference to the existence of a contract) was not discrimination on a proscribed "status" and, in any event, was objectively justifiable in the legislative context.

The appellant, a district judge, brought proceedings in the Employment Tribunal alleging detriments for protected disclosures under Part IVA of the Employment Rights Act 1996 (section 47B) and a claim of disability discrimination. The Employment Tribunal (Regional Employment Judge Robertson) dismissed the whistleblowing complaint on the ground that the appellant was an office-holder and not a "worker" within section 230(3) because there was no contract. The Employment Appeal Tribunal (Simler P) dismissed the appeal. The Court of Appeal (Underhill LJ delivering the judgment) heard the present appeal.

The primary legal question was whether a district judge can be a "worker" under section 230(3) ERA 1996 (limb (b): a contract other than a contract of employment under which the individual undertakes to perform personally work or services for another party). The court examined the statutory framework governing judges (County Courts Act 1984, Senior Courts Act 1981, Constitutional Reform Act 2005, judicial pension and discipline provisions), the appointment documents (invitation letter, Instrument of Appointment, and the terms-of-service Memorandum) and relevant authorities on office-holders and employment (notably Percy, Preston, Sharpe, Perceval-Price, O'Brien).

Issues framed by the court:

• (i) Domestic law: whether the appellant worked under a contract for services such that she was a "worker" for the purpose of the ERA 1996;
• (ii) Article 10 ECHR / HRA 1998: if not a "worker", whether section 230(3) can be read down under section 3 HRA to avoid an article 10 breach, or whether a declaration of incompatibility is required;
• (iii) Article 14 ECHR: whether exclusion from the ERA protections amounted to discriminatory treatment on a proscribed or analogous "status".

Court’s reasoning and conclusions:

• On domestic law the court accepted that an office-holder can in principle have a contractual relationship but, applying the approach in Preston, held that the documents and surrounding circumstances showed that the appellant’s core rights and duties derived from statute and the office itself (judicial oath, statutory functions, tenure until retirement except for limited removal grounds, salary fixed by statute, disciplinary regime involving the Lord Chief Justice), and there was no intention to create a parallel contract with the Lord Chancellor. The ET and EAT conclusions were endorsed.
• On article 10 the court held that adequate protection existed outside Part IVA: a judge is protected from dismissal, salary reduction and formal discipline for protected disclosures; any breach of Convention rights can be remedied under section 7 of the Human Rights Act 1998; additionally the Constitutional Reform Act and judicial grievance/disciplinary framework protect judicial independence. Given that effective remedies are available, reading section 230(3) down was unnecessary (though the court observed that a s.3 reading-down might be possible in principle).
• On article 14 the court found there was no difference in treatment on a proscribed "other status" and that judges are in a distinct, non-analogous position with specific constitutional protections. Parliament’s decision to define "worker" by reference to the existence of a contract was a legitimate policy choice, not manifestly without reasonable foundation.

The court therefore dismissed the appeal and observed that any perceived anomaly in the distinction between domestic-worker protection and EU-derived protection must be addressed by Parliament.

Appeal dismissed. The court agreed with the Employment Tribunal and the Employment Appeal Tribunal that the district judge was an office-holder whose core rights and duties derived from statute and not from a contract within section 230(3) ERA 1996, so she was not a "worker" for the purposes of the whistleblowing provisions. The court also held that adequate protection for article 10 rights exists under section 7 HRA 1998 and the statutory framework for the judiciary, and rejected an article 14 complaint on justification and status grounds.

Employment Tribunal (Regional Employment Judge Robertson) dismissed the whistleblowing complaint (Judgment with Reasons sent to parties on 26 October 2015); Employment Appeal Tribunal (Simler P) dismissed the appeal (judgment handed down 31 October 2016; reported at [2017] ICR 404); Court of Appeal dismissed the appeal on 21 December 2017 ([2017] EWCA Civ 2220).