Gilham v Ministry of Justice

A judicial office-holder does not ordinarily qualify as a limb (b) worker where the statutory scheme, governing terms and constitutional context show no intended contractual relationship. Judges also fall outside Crown employment. However, excluding judicial office-holders from statutory whistle-blowing protection discriminates in the enjoyment of freedom of expression. Judicial office is an occupational status, judges are relevantly analogous to protected workers, and exclusion without a legitimate aim lacks reasonable justification. The interpretive duty under section 3 of the Human Rights Act 1998 therefore requires the Employment Rights Act 1996 to be read so that Part IVA protects judicial office-holders. That reading neither contradicts a fundamental feature nor goes against the grain of the legislation.

Gilham v Ministry of Justice concerned a district judge who alleged that she had suffered bullying, victimisation, psychiatric injury and other detriments after raising concerns about court administration, workload, safety and possible miscarriages of justice. She sought protection under Part IVA of the Employment Rights Act 1996.

The Employment Tribunal, Employment Appeal Tribunal and Court of Appeal held that she was not a worker within section 230(3)(b). The Employment Appeal Tribunal's decision was reported at [2017] ICR 404. The Court of Appeal, whose decision was [2017] EWCA Civ 2220 and reported at [2018] ICR 827, also rejected her Convention discrimination argument.

The Supreme Court considered whether a judge was a contractual worker or in Crown employment; whether exclusion from whistle-blowing protection infringed articles 10 and 14 of the European Convention on Human Rights; and, if so, whether a Convention-compatible interpretation could provide a remedy.

1. Appeal allowed unanimously. Lady Hale delivered the single judgment, with which Lord Kerr, Lord Carnwath, Lady Arden and Sir Declan Morgan agreed. The proceedings were remitted to the Employment Tribunal on the basis that the appellant could claim Part IVA protection.
2. An office-holder may also work under a contract, but contractual status depends on the parties' objective intention. The court must examine the manner of engagement, the source and character of the governing rules and the overall context. Here, statutory appointment, statutory control of essential terms, divided institutional responsibility and judicial independence all pointed away from a contractual relationship. A district judge was therefore not ordinarily a worker under section 230(3)(b) of the Employment Rights Act 1996.
3. A judge was also outside Crown employment under section 191. Employment there was not confined to contractual employment, but judges did not work under or for the purposes of the Ministry of Justice. Nor did they work under or for the statutory functions of the Lord Chief Justice. They served the administration of justice in accordance with their oaths.
4. The exclusion fell within article 10 and amounted to discrimination under article 14. Judges were less favourably protected than employees and limb (b) workers against detriment for responsible public-interest disclosures. Judicial office was a recognisable occupational status. No legitimate aim had been identified, and Parliament had not demonstrably considered the exclusion. Consequently, the difference lacked reasonable justification regardless of the precise intensity of proportionality review.
5. An ordinary action under section 7(1) of the Human Rights Act 1998 could provide damages for a Convention breach but could not extend Part IVA or sustain this Employment Tribunal claim. Section 3 was the primary remedy. Applying Ghaidan v Godin-Mendoza [2004] UKHL 30 and drawing support from O’Brien v Ministry of Justice (formerly Department for Constitutional Affairs) [2013] UKSC 6, section 230(3)(b) could include a person who personally performs work by virtue of appointment to judicial office. That reading neither contradicted a fundamental feature nor went against the grain of the legislation. The equivalent Northern Ireland provisions were to be read in the same way.

1. United Kingdom Supreme Court: Allowed the appeal unanimously and remitted the claim to the Employment Tribunal: [2019] UKSC 44.
2. Court of Appeal: Held that the appellant was not a worker and rejected her claim under article 14 read with article 10: [2017] EWCA Civ 2220; [2018] ICR 827.
3. Employment Appeal Tribunal: Held that the appellant was not a worker, that adequate safeguards protected judicial freedom of speech and that section 230(3)(b) could not be read to include her: [2017] ICR 404.
4. Employment Tribunal: At a preliminary hearing, held that the appellant was not a worker and that section 230(3)(b) could not be read or given effect so as to confer whistle-blowing protection.