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Gilham v Ministry of Justice: Are Whistleblowing Judges Sufficiently Protected?

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About The Author

Ellie Ismaili (Guest Contributor)

Ellie is a law graduate from Keele University. She is currently working as a paralegal in the Litigation team at Allen & Overy after having completed the BPTC. Ellie has a particular interest in commercial and employment matters. Outside the law, Ellie occupies her time playing tennis and practising on her newfound hobby: roller-skating.

If liberty means anything at all, it means the right to tell people what they do not want to hear.

George Orwell

The act of whistleblowing is controversial. It can have a worldwide impact; historical examples of this include the revelations relating to the nuclear plant safety in Three Mile Island, the release of the Pentagon Papers by Daniel Elberg, and the acts of Edward Snowden, who highlighted the wrongdoings of some of the largest and more powerful intelligence offices in the world.

While some welcome whistle-blowers for bringing their employers’ immoral or illegal behaviour into the public eye, others view the same act – particularly in the context of the public sector – as displaying a lack of loyalty or even patriotism. Generally, however, whistleblowing is seen as being in the public interest, and the law therefore grants protection to those who have endeavoured to call out flaws in their working environment.

Intriguingly, though much judicial ink has been spilt with regards to the vast majority of the provisions of the Employment Rights Act 1996 (ERA 1996), the provisions detailing the protection that should be afforded to whistle-blowers are still the subject of debate. The Public Interest Disclosure Act 1998 amended the ERA 1996 to introduce protection for workers who "blow the whistle" on the wrongdoing of their employers. Section 47B(1) of the ERA 1996 states that:

A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a “protected disclosure”.

The application of this protection to the category of ‘workers’ means that the vast majority of the workforce are covered – for the most part, it is only those who are self-employed that are exempt. However, some lacunae remain: for example, as it currently stands, a judge is not deemed to be a ‘worker’ and cannot enjoy the immunity afforded to whistle-blowers.

Intriguingly, this has been the topic of a decision handed down yesterday by the Court of Appeal in Gilham v Ministry of Justice [2017]. This article therefore examines the merits of this decision, and those from the lower courts, in this long-running and important litigation.

Gilham v Ministry of Justice: The Facts

Claire Gilham (G) was appointed a full-time district judge in 2006. In 2009, she began sitting at Warrington County Court. Two years later, the wave of austerity measures introduced by the Ministry of Justice (MoJ) led to the closing of the nearby Runcorn County Court. This led to the two courts being merged; the cases that would previously be heard at Runcorn Country Court were therefore shifted to the County Court in Warrington.

G alleged that this escalated workload greatly increased the pressure that she, and other district judges, were under. Furthermore, G also outlined how she and her colleagues were facing galling challenges: she alleged that she had been the subject of death threats from a defendant intent on stabbing her, and had been taken hostage by claimants upon whose case she was set to decide.

G therefore wrote to a senior judge to express her concern about the impact of the MoJ’s austerity measures on district judges’ workloads, and her worries about how the lack of appropriate courtroom accommodation, caused dangers for judges and court staff. But, instead of receiving support or help in resolving the issues, G alleged that she was bullied, overworked and put under additional stress to the point that she eventually suffered a nervous breakdown.

G subsequently brought a claim against the MoJ, arguing that the detriments she had been subjected to were unlawful, on the grounds that her complaints should have been covered by whistleblowing protections. This claim was based on the argument that she, and other judges, fall under the definition of a ‘worker’ in Section 230(3) of the ERA 1996, thereby entitling her to protection under Section 47B(1) of the ERA 1996. The MoJ, however, rejected this argument: in its view, G is an “office-holder” and does not have the necessary contractual relationship to be considered a ‘worker’.

Gilham v Ministry of Justice: Earlier Decisions

The Employment Tribunal

Section 47B(1) of the ERA 1996 requires claimants like G to establish that they are a ‘worker’ within the definition of Section 230(3) of the ERA 1996, which defines a worker as:

[A]n individual who has entered into or works under (or where the employment has ended, worked under) a contract of employment, or 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

Before the Employment Tribunal, G argued that a judge should be considered a ‘worker’ because the relationship between a judge and the MoJ involved a ‘mutuality of obligation’. This was held in O'Kelly v Trusthouse Forte plc [1983] ICR 728 to be a fundamental element to finding such a relationship exists. As a result, G contended this meant she fell under the definition of ‘worker’ under EU law that originates from Directive 97/81/EC.

Indeed, G was hoping to take advantage of the Supreme Court’s ruling in Ministry of Justice v O'Brien [2009], where it held that that the wider definition of ‘worker’ from Directive 97/81/EC – implemented into UK law by the Part-Time Workers Regulations 2000 (PTWR 2000) – should be applied to Court Recorders. This definition is broader than that in Section 230(3) of the ERA 1996, for it applies to part-time workers who ‘have an employment contract or employment relationship as defined by the law’. 

However, the Employment Tribunal rejected G’s argument. It distinguished G’s case on the basis that the rights which the claimant in Ministry of Justice v O'Brien [2009] was trying to access derived from EU law. Therefore, given that the rights G was seeking – namely, the whistle-blower protections from the ERA 1996 – were domestic, the cases were not alike. G needed to establish the existence of a contract, not just an employment relationship.

The Employment Tribunal reasoned that it may be possible for a judge like G to successfully argue that holding an office does not preclude the creation of a contract. However, G’s argument was rejected because – in the view of the Employment Tribunal – the parties lacked the intention to create a contractual relationship in the first place. It pointed to a number of factual elements to justify its conclusion:

  • The manner and terms on which G was engaged were consistent only with appointment to an office with duties defined by statute.
  • There had been no negotiation in the terms of appointment and level of remuneration.
  • The relationship was not dependent on the parties willing it to continue; it could only be terminated by the MoJ in certain limited circumstances.

The Employment Appeals Tribunal

G appealed to the Employment Appeals Tribunal (EAT). She challenged the Employment Tribunal’s decision on the merits of her original argument concerning the ERA 1996. However, she also advanced an alternative case: that the lack of whistleblowing protection granted to judges undermined their right to freedom of expression that is enshrined in Article 10 of the European Convention of Human Rights (ECHR). G argued that, in order to comply with Section 3 of the Human Rights Act 1998 (HRA 1998), the courts needed to read Section 230(3) of the ERA 1996 in a different way, such that judges fell under the definition of ‘worker’.

Section 3 of the HRA 1998 places courts under a strong interpretative obligation. It states that:

So far as it is possible to do so, primary legislation and subordinate legislation must read and give effect in a way which is compatible with the Convention rights.

Courts are therefore required to read in words and reach interpretations of legislation that ensure it is compliant with the ECHR. As a result, G argued that courts should be required to read Section 230(3) of the ERA 1996 in a way that extended its protections to cover those not only with an employment contract, but also those who are in an “employment relationship”.

Simler J of the EAT disagreed with both arguments. In Gilham v Ministry of Justice [2016], she dismissed G’s initial challenge for similar reasons to the Employment Tribunal. Then, on G’s alternate argument, Simler J held that it was not necessary to add on an extra category of ‘worker’, or extend the definition, because Parliament has already put in place others measures that guaranteed that the rights of a judicial offer to their freedom of expression under Article 10 of the ECHR, including:

Gilham v Ministry of Justice: The Court of Appeal

G’s case carried on to the Court of Appeal (CoA). As well as continuing the two arguments she had advanced before the EAT, G sought to advance a further alternative argument: the denial of her whistleblowing rights that should be protected under Article 10 of the ECHR meant that her rights under Article 14 of the ECHR were being infringed.

Article 14 of the ECHR holds that:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Alleging that discrimination on the grounds of ‘other status’ had occurred, G again argued that this meant that compliance with Section 3 of the HRA 1998 required the courts to read Section 230(3) of the ERA 1996 in a wider way, such that judges fell under the definition of ‘worker’.

Despite granting permission for the third argument to be pleaded, the CoA in Gilham v Ministry of Justice [2017] unanimously dismissed G’s case, rejecting all three stands of her appeal.

The Primary Case – The ERA 1996 Argument

The CoA acknowledged that there was ‘some superficial indicia of a contractual relationship’ that might appear to allow G to fall under Section 230(3) of the ERA 1996. This included the fact that, when G initially become a judge, there was an ‘offer’ of appointment that G was invited to ‘accept’. Furthermore, it observed that the terms and conditions of her appointment were similar to those often found in other contracts of employment. However, the CoA considered these points ‘far from decisive’ and noted that:

In practice no-one can be appointed to an office without a prior indication of their willingness to accept it, so the language of offer and acceptance is insignificant as an indication of a specifically contractual relationship alongside that created by the appointment.

The CoA placed great weight of the origins of the terms and conditions. After observing that they were ‘neutral as to whether they derive their force from a contract’, it stated that an ‘essential point’ was that the ‘core rights and obligations of a judicial office-holder derived from statute’ – or even from ‘the office itself, symbolised by the taking of the judicial oath’ rather than from a contractual relationship. The CoA noted that a wide number of functions derived from statutes and statutory instruments, including:

  • The particular functions of a district judge
  • The duration of the appointment
  • The power to determine the judge’s salary and pensions rights

In the CoA’s view, this all meant that there was ‘no need to look for a contract in order to establish these basic rights and obligations’. This, it pointed out, was important for the principle of judicial independence – to the extent that Maurice Kay LJ in the Court of Appeal’s decision in O’Brien v Department for Constitutional Affairs [2008] felt it was a decisive consideration – as it put ‘much visible distance between the judiciary and the executive’.

The CoA continued, observing a number of factors that were ‘untypical of a contract for the provision of services’ that ‘contribute to the overall picture of a relationship dependent only on the holding of a statutory office’. These included the lack of sick-pay arrangements, an expectation as to the minimum number of days that a judge will work and the ‘extremely limited’ role of the Lord Chancellor in managing G’s role.

The CoA fortified its conclusion by reference to a line of case law concerning the relationship between religious office-holders and churches: in Methodist Conference v Preston [2013], a minister who enjoyed terms of service ‘of an equally elaborate nature’ to G was held not to have a contract with their church.

Importantly, however, the CoA noted that their decision, combined with that in Ministry of Justice v O'Brien [2009], created a distinction – between workers’ rights that derive from domestic law and those that derive from EU law – that created a state of affairs that ‘may not appear to be a coherent or particularly satisfactory state of affairs’. However, it defended its conclusion by saying:

[T]he only way of avoiding the problem is to find that judges work under a contract with the Lord Chancellor, and such a finding is not open to us on the conscientious application of the principles most recently expounded in Preston. If that is an anomaly it can only be remedied by Parliament.

Alternate Argument One – The Article 10 Argument

The CoA in Gilham v Ministry of Justice [2017] were swift in dismissing G’s second argument. Though accepting that the right in Article 10 of the ECHR ‘comprises a right in certain circumstances for a worker to make a whistleblowing complaint about her working conditions’, it held that this right was sufficiently protected without the need for recourse to the Section 230(3) of the ERA 1996.

Making reference to the same statutory provisions that Simler J cited in the EAT’s decision, the CoA held that G is properly protected against dismissal or formal disciplinary sanctions, and from any reduction in her salary. It also rejected G’s contention that proceedings under Section 7 of the HRA 1998 would be ‘inferior’ to proceedings under Section 230(3) of the ERA 1996, on the grounds that there was no obvious difference in the adequacy or effectiveness of the remedy that a judge would be entitled to.

Alternate Argument Two – The Article 14 Argument

To tackle G’s second alternate argument, the CoA applied the approach set out by Brooke LJ in Wandsworth LBC v Michalak [2002] and Lady Hale in Ghaidan v Godin-Mendoza [2004], which involves asking five questions:

  • Do the facts fall within the ambit of one or more of the ECHR rights?
  • Was there a difference in treatment in respect of that right between the complainant and comparators? (In this case, G was comparing herself with all other persons in England with jobs).
  • Whether the difference in treatment is based on one or more of the grounds proscribed in Article 14 of the ECHR, whether expressly or by inference?
  • Were the comparators in an analogous situation?
  • Was the difference in treatment objectively justifiable?

In relation to the first two questions, the CoA noted that it was common ground that the case fell under the ambit of Article 10 of the ECHR, and that the fact that others could rely upon the whistle-blowing protection from the ERA 1996 meant that a difference in treatment was occurring. The answers to the other three questions, however, remained in dispute.

Question 3 – Was the Difference in Treatment Due to One of the Proscribed Grounds?

Citing cases such as Engel v Netherlands [1976] – which concerned ‘discrimination’ based on military – and R (L) v Manchester City Council [2001] – G contended that the characteristics that could fall under the words ‘other status’ were wide, such that they did not need to be innate, inherent or exist independently from the complaint. G therefore argued that ‘other status’ could encapsulate a difference in treatment between those working under a contract, and those who are not working under a contract or are office-holders.

The CoA rejected this. It observed that the language of the ERA 1996 did not draw any such distinctions, but simply defined workers in a way that drew a line in a way that means ‘all persons who do not have a relevant contract within the meaning of that definition fall outside the scope of protection’. Furthermore, it observed that the distinction simply concerns whether a person has a ‘relevant contract’ and has ‘nothing to do with personal characteristics.’

Question 4 – Are Comparators in an Analogous Situation?

The CoA held that G was not ‘in an analogous situation to those with whom she compares herself’, on the grounds that there are many members of the workforce who work for the private sector, and thus do not have the right to bring proceedings under the HRA 1998 against their employers. In fact, the CoA pointed out that a judge is actually ‘in a unique position’ and has ‘many protections, for fundamental constitutional reasons, which no one else does’.

Question 5 - Was the Difference in Treatment Objectively Justifiable?

The CoA observed that the definition of worker under the ERA 1996 is used in a variety of contexts in employment legislation. Thus, it noted that if it accepted G’s arguments – which it characterised as criticism of ‘the policy choice which Parliament has made’ – it would potentially ‘have repercussions for other legislation’. Indeed, the CoA was reluctant to interfere with an area that seems reserved for Parliament. It observed that:

Lines have to be drawn somewhere… It may well be that the line which it has drawn is open to criticism from those who are dissatisfied with the lack of apparent protection for them… Nevertheless, that is the policy choice which the democratically elected Parliament of the United Kingdom has made [and it] cannot be regarded by this Court as being “manifestly without reasonable foundation”.

Comment and Conclusion

G has already indicated an intention to appeal the CoA’s decision to the Supreme Court. Whether G will be successful in this is unclear, but it will give the Supreme Court a welcome opportunity to examine the seemingly unsustainable dichotomy that it inadvertently created in O’Brien between workers’ rights that derive from domestic law and those that derive from EU law.

Questions can be raised as the sustainability of the conclusion that judges’ rights under Article 10 of the ECHR are currently well-protected. While all of the statutory protections cited by the EAT and the Court of Appeal reinforce the independence of the judiciary – particularly when they are deciding cases in which the MoJ appears – it is hard to view them as offering recourse to judges who have had their right to freedom of expression infringed. They certainly do not appear to provide any protection to whistle-blowers.

That said, if this case does proceed to the Supreme Court, it will likely come down to a debate between legal principle and policy. On the whole, the CoA’s decision in Gilham v Ministry of Justice [2017] seems to accord well with recent authority; legally speaking, therefore, it seems sound. Nonetheless, in cases such as FHR European Ventures LLP v Cedar Capital Partners [2014], the Supreme Court has been prepared to favour policy considerations over rigid legal principle.

And, from a policy perspective, however, there is strength in the argument that judges should be granted the protection that the ERA 1996 affords to whistle-blowers. After all, given that the extent to which austerity is adversely affecting the legal system remains unclear, it is in the public interest that those in the judiciary – who have experienced the issue first-hand – who highlight problems and raise concerns are given protection. Adapting the legislative framework to offer protection, rather than narrowly construing it to dismiss a case of great concern on matters of contractual technicalities, seems counter-productive.

The Supreme Court may therefore decide that whistle-blower protection should be afforded to judges and interpret the law to permit this. Alternatively, as counsel for G argued before the CoA, the option of an declaration of incompatibility under Section 4 of the HRA 1998 is also open: this would allay the CoA’s concerns about infringing upon Parliament’s policy decisions, by requiring Parliament to revisit and re-examine the ERA 1996’s provisions.

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Tagged: Courts, Discrimination, Employment Law, Justice, Supreme Court, The Judiciary

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