Does whistleblowing protection extend to workers and others?

29 November 2019 | Shabir Karatella

The decision in Gilham v Ministry of Justice 2019 gives some guidance on whether whistleblowing protection would extend to workers and others.

Background

Ms Gilham was a district judge and during her tenure, she raised various concerns about cost-cutting reforms, excessive workloads and alleged poor working conditions, which she alleged amounted to “protected disclosures” under the whistleblowing provisions. She claimed she was subjected to numerous detriments as a result of these complaints, including being bullied, ignored and undermined by fellow judges and court staff.

The Ministry of Justice (MoJ) argued that she was an ‘office holder’ and not a worker as defined under Sec 230 of the Employment Rights Act 1996 (ERA).  The claimant issued proceedings in an Employment Tribunal. The claimant sought to establish that she was a worker, on the basis that she worked under a contract with the respondent. She also claimed that lack of a remedy for whistleblowing meant she was denied an effective remedy for a breach of her right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR).

The Employment Tribunal, Employment Appeal Tribunal and The Court of Appeal rejected all the claims. She appealed to The Supreme Court.

Decision of The Supreme Court

The Court had to decide whether judges were workers for the purposes of the protection against whistleblowing detriment under the ERA.

Section 230 ERA 1996 defines a “worker” as an individual who has entered into or works under (or, where the employment has ceased, worked under)—

(a) a contract of employment, or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual”

The court accepted the view that judges were ‘workers’ for the purposes of EU and EU derived domestic legislation.  However, the whistleblowing provisions were not EU derived, and the question was whether judges fell into the above definition. The definition requires a contract between the claimant and the employer, and in the circumstances, it was impossible to establish a contract;

  • The essential elements of a judge’s work are governed by statute, not an agreement.
  • It is difficult to establish who that contract is with – judges may be appointed by The Crown, have their work arranged by local leadership (senior judges), rely on others for training (Lord Chief Justice) and have facilities provided by Secretary of State. However, there is no ‘employer’ with the power to dismiss – a judge can only be removed from office in accordance with statutory requirements.

They therefore unanimously ruled that judges are not workers in the domestic sense, in that they do not work pursuant to contracts.

The claimant also raised a case argument, namely that judges are in “Crown employment” as defined by Section 191 ERA and this has been used to afford employment rights to civil servants. The court rejected this argument, indicating that judges work for the administration of justice in the courts of England and Wales. They do not work under or for the purpose of a government department.

However, the court did agree that the exclusion of judges from whistleblowing protection would amount to a breach of the judge’s rights under the ECHR. The court asked itself “as judges are treated differently from workers, is that difference in treatment justified” The court held that it was not justified. They felt that judicial impartiality and independence would not be enhanced by the absence of protection for judges complaining of detriments.  Whilst protection exists against dismissal or loss of pay, detriments which fall short of that are not justifiable in an ET.

On this basis, the appeal succeeded. The courts conclusion was that the whistleblowing provisions should be treated as applying to judicial office holders even though they are not workers.

Impact of decision

This decision may lead to an extension of the class of persons entitled to seek the protection of the whistleblowing provisions. This may include office holders such as company directors, company secretaries, board members, volunteers or secondees. It is therefore important that organisations have a wide ranging and all-encompassing policy which covers all individuals.

If you have any questions in regards to whistleblowing please call us on 0333 240 7208 or contact us.

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