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27 November 2019
The Supreme Court has ruled that judges are workers under whistleblowing legislation and are thus protected from being treated badly for making a protected disclosure.(1)
A series of cases in recent years have questioned whether individuals working in different roles should be classed as workers and thereby covered by legal entitlements such as:
A 'worker' is defined as an individual who has a contract to provide services personally to someone who is not a client or customer of their business. Most of the cases so far have focused on the obligation of personal service and whether the way in which service is provided means that someone is genuinely self-employed.
This case was slightly different because the key question was whether a district judge was engaged under a contract or a different legal arrangement, as judges are described as office holders.
Ms Gilham worked as a district judge. She was engaged under terms of appointment which included a detailed document entitled "District Judges - Memorandum on conditions of employment and terms of service".
Gilham raised several concerns about a cost-cutting exercise regarding the court system with senior managers. She subsequently raised a grievance, complaining about:
Later, Gilham claimed that she had been treated badly in a number of ways as a result of raising these complaints. She brought various claims to the Employment Tribunal, including one for detriment as a result of making protected disclosures.
The Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal all found that Gilham was not a worker and was thus not entitled to the protection provided for by whistleblowing law. However, the Employment Tribunal in particular expressed concern that this did not adequately protect her freedom of speech.
The Supreme Court disagreed with the lower courts and upheld Gilham's appeal, ruling that it was possible to classify her as a worker to bring her within the protection of whistleblowing law.
The Supreme Court agreed that Gilham did not obviously fall within the definition of a 'worker' because, looking at the terms of appointment and how the relationship with the Ministry of Justice worked in practice, she did not work under a contract. On the face of it, this meant that she was not protected.
The Supreme Court nonetheless decided that this failed to protect Gilham's human rights – specifically, the right to freedom of expression under Article 10 of the European Convention of Human Rights. Leaving a judicial officer holder without any whistleblower protection meant that she was being discriminated against in her exercise of her rights under Article 14. No legitimate aim had been put forward for excluding judges from protection in this way.
The Supreme Court's solution was to interpret the wording of UK legislation to include judicial office holders within the definition of 'worker' for the purposes of whistleblowing protection. The courts are obliged to interpret domestic law in a way that is compatible with the European Convention of Human Rights as far as possible. The Supreme Court had previously used EU law to include judges within the definition of 'worker' for the purposes of a part-time worker discrimination claim, and so felt able to take a similar approach in this case when considering the European Convention of Human Rights. This did not go against the grain of the legislation and was an appropriate way to protect judges' rights to freedom of expression.
The Supreme Court's judgment applies only to whistleblowing law, which involves rights under the European Convention of Human Rights. The Supreme Court has not said that judges are workers for all purposes. Yet, this is still an interesting example of the courts using the European Convention of Human Rights to give protection to an individual who ostensibly fell outside the definition of a 'worker'.
Although jobs that involve being an office holder are relatively rare, it is possible that a similar approach could be used to protect other types of job status as well. One example is ministers of religion, whose classification as employees, workers or office holders without a contract has been the subject of disagreement in previous cases.
This case also illustrates how the European Convention of Human Rights can be used to interpret existing domestic law when human rights are at stake, and effectively add to it when appropriate. The European Convention of Human Rights is separate from EU law and is implemented in the United Kingdom through the Human Rights Act 1998, so it is an example of European-influenced law that will remain unchanged if and when Brexit finally happens. Having said that, it has been Conservative Party policy for some time to repeal the Human Rights Act and replace it with a so-called 'British Bill of Rights'. The issue of how to do that has been postponed until after Brexit, but in due course it could lead to the courts and tribunals applying human rights principles via a different legal mechanism.
For further information on this topic please contact Michael Burd at Lewis Silkin by telephone (+44 20 7074 8000) or email (email@example.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(1) Gilham v Ministry of Justice – judgment available here.
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