Gilham v Ministry of Justice

The Supreme Court considered whether a district judge is a "worker" under section 230(3)(b) of the Employment Rights Act 1996 for the purposes of the whistle-blowing protections in Part IVA, and alternatively whether judicial office-holders fall within "Crown employment" under section 191. The court held that, although judges are statutory office-holders, the statutory definition of "worker" in section 230(3)(b) can be read under section 3 of the Human Rights Act 1998 so as to include holders of judicial office for the limited purpose of Part IVA. The court found that excluding judges from whistle-blower protection amounted to less favourable treatment in the enjoyment of the Article 10 right to freedom of expression contrary to Article 14 read with Article 10 and that no adequate justification or legitimate aim had been shown. The appeal was therefore allowed and the claim remitted to the Employment Tribunal for determination as a claimant entitled to Part IVA protection.

The appellant, a district judge, brought claims to the Employment Tribunal alleging detriments suffered after making public interest disclosures: a whistle-blowing claim under Part IVA of the Employment Rights Act 1996 and a disability discrimination claim under the Equality Act 2010. The disability claim proceeded on the basis that EU-derived discrimination law required a broad definition of "worker" established in this court's earlier decision in O'Brien v Ministry of Justice. The tribunal, the Employment Appeal Tribunal and the Court of Appeal had previously held that the appellant was not a "worker" for the purposes of section 230(3)(b) and thus not entitled to Part IVA protection.

The Supreme Court addressed three principal issues: (i) whether a judicial office-holder can be a "worker" within section 230(3)(b); (ii) whether judges are "in Crown employment" under section 191; and (iii) whether denial of Part IVA protection to judicial office-holders breached the Convention rights, in particular Article 10 and Article 14 read with Article 10 of the European Convention on Human Rights.

The court analysed the distinction between office-holders and contractual workers, emphasising that the question is one of the parties' intentions and the legal character of the relationship. The court considered the statutory framework governing appointment, terms, deployment, remuneration and discipline of judges and the constitutional context of judicial independence, factors which point away from a conventional contractual employment relationship. The court concluded that judges do not fall within a conventional contract of employment and that it was unlikely that they are to be treated as "Crown employment" in the relevant sense.

However, applying the interpretive duty in section 3 of the Human Rights Act 1998 and the analysis in Ghaidan v Godin-Mendoza, the court considered whether section 230(3)(b) could be read so as to include judicial office-holders for the purpose of the whistle-blowing provisions. In light of the court's prior decision in O'Brien, and because inclusion of judges would not cut across the fundamental features of the Employment Rights Act, the court concluded that it was possible to interpret section 230(3)(b) compatibly with Convention rights so as to extend Part IVA protection to holders of judicial office. The court also held that the exclusion of judges from Part IVA amounted to less favourable treatment in the enjoyment of the Article 10 right and that no legitimate aim or proportional justification had been shown for the exclusion.

Remedy: 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.

Appeal allowed. The Supreme Court held that, although district judges are statutory office-holders rather than conventional employees, section 230(3)(b) of the Employment Rights Act 1996 can, so far as possible under section 3 of the Human Rights Act 1998, be read to include holders of judicial office for the purpose of extending the whistle-blowing protections in Part IVA to them. The court further concluded that excluding judges from Part IVA was discriminatory in the enjoyment of the Article 10 right (Article 14 read with Article 10) and no adequate justification was shown. The matter was remitted to the Employment Tribunal for further proceedings on that basis.

Employment Tribunal: held appellant not a "worker". Employment Appeal Tribunal: [2017] ICR 404, held not a "worker". Court of Appeal: [2018] ICR 827, appellant unsuccessful. On further appeal to the Supreme Court from [2017] EWCA Civ 2220 the appeal was allowed ([2019] UKSC 44).