Employment Law Specialists Gear Up for Appeal Hearing in Gilham “Judges are Workers” Case

The Judge Gilham “Whistle-Blowing” case will be heard in the Supreme Court this week (June 5th and 6th 2019), with Emilie Cole, Partner at national law firm Irwin Mitchell  advising Judge Gilham.

Gilham – v – Ministry of Justice follows a number of high profile worker right’s cases, such as Uber and Deliveroo.  Judge Gilham is appealing against the decision that judges are not workers and therefore do not benefit from whistleblowing protection. She has raised £5,590 through a crowdfunding appeal to help pay for her Supreme Court Fees and costs.

The appeal follows a five year legal wrangle for Judge Gilham who initially raised issues relating to management style and culture, bullying, overwork, and general health and safety at Warrington County Court in 2013, where she was a sitting judge. When her complaints were not dealt with satisfactorily, and she was treated less favourably as a result, Judge Gilham was forced to bring her claim in the Employment Tribunal for whistleblowing detriment in February 2015.  She also made a complaint of disability discrimination because of the mental breakdown that she suffered as a result of blowing the whistle.

In this period she was nearly  forced into “retirement on health grounds” however against the odds, her health has slowly improved.  Judge Gilham is determined to get clarity on the law, and ensure that Judges benefit from legal protection against unfair treatment for blowing the whistle.  Judge Gilham firmly believes “ The oath I took encourages transparency for the public good.”

She has only recently begun working again.

The Court of Appeal, like the Employment Appeal Tribunal and the Employment Tribunal held that: a District Judge is not a worker.  According to the Court of Appeal, this was because the true source and nature of the core rights and obligations of a District Judge derive from statute and there is consequently no need to look for a contract to establish their basic rights and obligations.

Since 230(3) of the Employment Rights Act 1996 (“ERA”) requires a “contract” for worker status, Judge Gilham could not be classed as a worker and in consequence  did not  benefit  from the protections afforded by the ERA. The Court of Appeal and the Tribunals below also concluded that there was no breach of Judge Gilham’s Human Rights, under 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).

Judge Gilham is determined to carry on her fight for justice as a whistleblower, where she will argue that:

1. District Judges work under a contract.  The other party is the Lord Chancellor, whereby they undertake to do or to perform personally work, that work being the exercise of judicial functions.
2. If District Judges are not workers, then they are crown employees (under s.191 ERA)
3. The failure to extend whistleblowing protection to Judges breaches their Human Rights to freedom of expression and for all Human Rights shall be enjoyed without discrimination.

The case has already established considerable media interest and will be a key decision impacting on the current stream of litigation enforcing and protecting worker’s rights.

Emilie Cole, a partner in Irwin Mitchell’s Employment team has been advising Judge Gilham since the start of her litigation journey in 2015.

Expert Opinion

“Everyone should have the right to blow the whistle, safe in the knowledge that they will be protected from harm for doing so. The background of this legal protection comes from a long line of high profile disasters which caused avoidable, horrific deaths for many innocent people. Anything that stands in the way of an individual expressing concerns about health and safety and breaches of the law can’t be in the public interest or benefit wider society.

“The EU Commission has published a proposal for a Directive on giving whistleblowing protection to workers. When this law is enacted, the meaning of ‘Worker’, will need to be extended to the EU compliant definition of ‘Worker’, which as confirmed in the case of Ministry of Justice v O’Brien, included part time Recorders (Judges). For these reasons, the domestic legislation should be interpreted in a way which furthers, rather than limits protection for whistleblowers.”
Emilie Cole - Partner

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

Irwin Mitchell was recently named as the third most active firm in the UK courts in 2018 by The Lawyer magazine.