Whistleblowing protection under the Employment Rights Act 1996 (“ERA”) is limited to employees and an extended category of workers. However, in the case of Gilham v Ministry of Justice, the Supreme Court has held that judges (who are not employees or workers) are also entitled to protection as whistleblowers. This is a significant decision which could have far reaching consequences.
The claimant, District Judge Gilham, had been a salaried Judge and office-holder since January 2006. In 2010, she started complaining about the impact of funding cuts on the justice system, specifically the lack of security in courtrooms and the increase in workload. She alleged that these were leading to miscarriages of justice and creating health and safety concerns. The claimant further alleged that she was bullied by fellow judges and court staff for her raising these concerns and consequently brought a whistleblowing claim under the ERA on the basis that she had suffered a detriment for making a protected disclosure.
The employment tribunal, the EAT and the Court of Appeal each held that DJ Gilham was not an employee or worker, but an ‘office holder’ for the purposes of the ERA and therefore had no whistleblowing protection. DJ Gilham appealed to the Supreme Court.
The Supreme Court allowed her appeal.
While the Supreme Court agreed that judges are not employees or workers, it granted her appeal on the basis that the exclusion of judges from whistleblowing claims would amount to a breach of their rights under the European Convention of Human Rights (“ECHR”).
Article 14 ECHR provides that the rights set out in the ECHR must be protected and applied without discrimination, including on grounds of sex, race, colour or ‘other status’. One of these rights is found under Article 10 (the right to freedom of expression). According to the Supreme Court, DJ Gilham’s Article 10 was exercising her right to freedom of expression by raising her concerns. Article 14 was also engaged as being a judge amounted to ‘other status’. DJ Gilham’s right to have her freedom of expression adequately protected would have been undermined in breach of Article 14, if she could not bring a whistleblowing claim.
The case has now been remitted back to the employment tribunal for a determination on the facts.
This judgment could have a significant impact for other individuals carrying out work in atypical circumstances. Individuals who are neither employees nor workers could now use Article 14 to claim that their ECHR rights have been infringed in relation to their ‘other status’ if they are refused permission to bring a whistleblowing claim.
Further, individuals who previously would have had no protection (non-worker/employees) could possibly use the reasoning in this case to bring other claims (not just whistleblowing), both under the ERA and under other legislation, where they can show that a ECHR has been infringed.