Are District Judges 'Workers' And Therefore Entitled To Protection From Whistle-Blower Detriment?

Employment law partner Emilie Cole at Irwin Mitchell LLP has advised Judge Gilham since 2015, and more recently in preparation for her upcoming Supreme Court appeal hearing of Gilham v Ministry of Justice [2017] EWCA Civ 2220.   The case has been listed to be heard on 5th and 6th June 2019.

This case will determine whether a District Judge is a ‘worker’ for the purposes of section 230(3) of the Employment Rights Act 1996 (ERA), and therefore entitled to the protection set out in section 47(B) which states that a ‘worker’ should not be subjected to any form of detriment by their employer (e.g. being treated unfavourably) as a result of making a protected disclosure (‘whistleblowing’).

Background

Judge Gilham is a District Judge. In February 2015 she made a claim to the Employment Tribunal that she had suffered a number of detriments contrary to section 47(B) of the ERA having made  protected disclosures which broadly concerned the poor and unsafe working conditions and excessive workload at Warrington County Court.

Findings of the ET, EAT and Court of Appeal

The Court of Appeal, along with the Employment Appeal Tribunal and Employment Tribunal below it, held that Judge Gilham could not rely on section 47(B) purely because she was not a ‘worker’ according to its definition in section 230(3) of the ERA. Section 230(3) of the ERA defines a ‘worker’ as someone who works under a ‘contract of employment’ or who personally undertakes work or services for another party who is ‘not a client or customer of any profession or business undertaking carried on by the individual’. The Court of Appeal decided this because ostensibly, the true source and nature of the rights and obligations of a judicial office-holder derive from statute, not from any contract or relationship with the Lord Chancellor. The constitutional need to keep the judiciary independent from the executive also influenced their decision; to suppose that a contract existed between the two would place not enough ‘distance’ between them. Finally, the Court of Appeal also ruled that a failure for Judge Gilham to have recourse to the protections set out in section 47(B) did not contravene her Human Rights, in particular, Article 10 (everyone has the right to freedom of expression) and Article 14 (the enjoyment of the rights and freedoms under the Convention for Human Rights shall be secured without discrimination on any ground).

The case before the Supreme Court

Judge Gilham will argue that the Court of Appeal erred in its decision, considering:

1. District Judges are ‘workers’. They work under a contract with the Lord Chancellor and/or the Ministry of Justice, where they undertake to do or perform personally any work or services (i.e. the exercise of judicial functions) for the other party. On the facts, not only were there hallmarks of a contractual relationship between Judge Gillam and the Lord Chancellor, but according to case law it is entirely possible to have statutory provisions which govern a judge’s office as well as contractual terms which reflect those statutory provisions.
2. If the Court decides that there was no contractual relationship between Judge Gilham and the Lord Chancellor, then District Judges come under Crown Employment for the purposes of s191 of the ERA, and are therefore protected by whistleblowing provisions.
3. Article 10 (concerning freedom of expression) was in fact breached: as it stands, considering Judge Gilham cannot pursue her claim in an Employment Tribunal and thus have access to an effective and suitable remedy, this prevents the enjoyment of her rights under Article 10. Article 14 was also breached, considering the wealth of case law which establishes that judges do have ‘protected status’ and therefore acquire the right to not be discriminated against.

A new meaning of ‘worker’? 

The decision of this case will either broaden or contain the meaning of a ‘worker’ under section 230(3) of the ERA. It also adds to the stream of cases such as Uber BV v Aslam [2018] EWCA Civ 2748 and Independent Workers' Union of Great Britain (IWGB) v RooFoods Ltd [2018] IRLR 84 which have attempted to broaden the circumstances in which an individual will be classified as a ‘worker’. By doing so, it is hoped that the outcome will clarify a very grey area of law, whereby who exactly is considered a ‘worker’ is difficult to conclude with certainty.

Judge Gilham has launched a crowd-funding her case to help pay towards her legal fees and disbursements.  Contributions can be made via Judge Gilham's CrowdJustice page.