Irwin Mitchell Acts for Judge in Gilham v Ministry of Justice as Judgement Providing Whistleblowing Protection to Judges and Non-Contractual Office Holders is handed down by the Supreme Court

Today the Supreme Court, led by Lady Hale, determined that excluding Judges and Office Holders from whistle-blowing protection is a breach of their human rights.

Lady Hale said ‘I can reach no other conclusion than that the Employment Rights Act should be read and given effect so as to extend its whistle-blowing protection to the holders of judicial office.’

Expert Opinion

“This judgement is a great win for my client, Judge Gilham. She has fought hard for many years to achieve recognition for whistle-blowing protection. Widening the scope of whistle-blowing protection is fundamentally in the public interest and benefits wider society. The recognition by the Supreme Court that an occupational classification is capable of protection as a ‘status’ under Article 14 of ECHR has far reaching consequences. Non-contractual office holders are now capable of claiming legal protection for blowing the whistle* (see bullet 4 below). This is a massive step forward in equality law and will have wide implications for the greater good. Justice has finally prevailed.” Emilie Cole - Partner

Judge Gilham said, “Winning is a great relief after these seven long years. Ethically I always knew that my point was right: that judges should have Human Rights protections. You can’t have justice without independent and unafraid judges, and if judges can’t speak out to protect the court system, then justice suffers and the people caught up in the system suffer too. I look forward to my claims being heard in the Employment Tribunal.” “Carrying forward this kind of case is prohibitively expensive and has been a severe financial burden on me and my family. We have an on-going crowd-fund at Crowd-justice. I’d like to thank all those who have and might support me.”

The Supreme Court decision follows a seven year legal wrangle against the Ministry of Justice. 

Judge Gilham initially raised concerns in 2010 about the impact of the major cost cutting reforms to the Court Service.  Judge Gilham blew the whistle about bullying, the lack of appropriate and secure court room accommodation, the severely increased workload and administrative failures.  She claimed that her complaints were “qualifying disclosures” under section 43B of the Employment Rights Act 1996 as they were about a failure to comply with legal obligations, that miscarriages of justice were likely, and that health and safety was being or was likely to be endangered.  Judge Gilham argued that she was entitled to protection due her status as a whistle-blower.   

After blowing the whistle, Judge Gilham was seriously bullied, ignored and undermined by her fellow judges and court staff.  She suffered from a severe psychiatric injury, which resulted in a disability under the Equality Act 2010.    She was signed off work with stress from early 2013 and forced into an ill heath retirement process which is now the subject of a further claim.  Against the odds, her health improved and she returned to work earlier this year.  Judge Gilham had been determined to ensure that Judges benefit from legal protection for blowing the whistle.  Arguing the failure to extend this protection to judicial officers was a violation of her right to freedom of expression under article 10 of the European Convention on Human Rights (“ECHR”).  Judge Gilham said “The oath I took encourages transparency for the public good.”

In making its decision the Supreme Court recognised that detrimental treatment against Judge Gilham as a result of her blowing the whistle would be an interference with her human right to freedom of expression under article 10 ECHR (right to freedom of expression) . 

1. The Supreme Court agreed that failure to extend whistleblowing protection to a judicial office holder is a violation of her rights under article 14 of ECHR read with article 10.Article 14 provides that all the rights and freedoms in the Convention on Human Rights ‘shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social original, association with a national minority, property, birth or other status.’
2. The Supreme Court held that the facts of Judge Gilham’s case did fall within the ambit of the right to freedom of expression protected by article 10 (right to freedom of expression).Being denied whistle-blowing protection is undoubtedly less favourable treatment.
3. The Supreme Court determined that an occupational classification as a judge and as a non-contractual office holder is clearly capable of being a “status” within the meaning of Article 14.
4. The Supreme Court had the opportunity to take a narrower view that this status and the scope of protection would only apply to judges, however the judgement appears to go much further in scope and include the status of other office holders within the ambit of whistle-blowing protection. For example, statutory appointments such as registered company directors, secretaries, board members will be protected.It is also likely to include appointments under the internal constitution of an organisation, such as club treasurers or trade union secretaries. It also encompasses Trustees and ecclesiastical appointments, e.g. church ministers. The Supreme Court recognised that the constitutional position of a judge reinforces the view that this is indeed a recognisable status.
5. The Supreme Court held that there was no reasonable justification for that difference in treatment.Denying whistle-blowing protection to the judiciary was not a proportionate means of achieving a legitimate aim.
6. The Supreme Court found that extending whistleblowing protection to the judiciary would not be contrary to judicial independence.
7. The Supreme Court concluded that the exclusion of judges from the whistleblowing protection in Part IVA of the 1996 Act is a breach of their rights under article 14 read with article 10 of the ECHR.
8. The Supreme Court found that there was no contractual relationship between a judge and the executive, or between a judge and the Lord Chief Justice. The absence of a contract results in judges not being ‘a worker’ under s.230 (3) of the 1996 Act.
9. This is a landmark Equality and Human Rights judgement which has the potential to significantly widen the scope of the use of Article 14 within the context of other employment and property rights.

Counsel for the case was Karon Monaghan QC; from Matrix Chambers a high-profile specialist in Human Rights related employment issues.