United Kingdom Supreme Court: A Full Bench of Lady Hale (President), Lord Kerr, Lord Carnwath, Lady Arden and Sir Declan Morgan, JJ. Allowed the appeal and remitted the case to Employment Tribunal on the basis that the appellant is entitled to claim the protection of Part IVA of the Employment Rights Act, 1966.
In the instant case, the appellant was appointed as a District Judge. Initially, she was to sit at each of the county courts on the Wales and Chester circuit but she was transferred elsewhere and major cost-cutting reforms were announced. The appellant raised a number of concerns relating to the cuts, in particular about the lack of appropriate and secure courtroom accommodation, the severely increased workload placed upon the district judges, and administrative failures. She raised these with the local leadership judges and senior managers in Her Majesty’s Courts and Tribunals Service and eventually in a formal grievance. The appellant claims that she was subjected to a number of detriments as a result of her complaints: a significant delay in investigating her grievance; being seriously bullied, ignored and undermined by her fellow judges and court staff; and inadequate steps to support her in returning to work. Hence, she approached the court to provide Judges with whistle blowers protection under the Employment Rights Act, 1996.
The issue was whether a district judge qualifies as a “worker” or a “person in Crown employment” for the purpose of the protection given to whistle-blowers under Part IVA of the Employment Rights Act 1996. If a district judge does not qualify for whistle-blower protection, the further question is whether this is discrimination against her in the enjoyment of her right to freedom of expression under the European Convention on Human Rights.
The respondent argued that the appellant doesn’t fall within the ambit of “worker” as the 1996 Act as there was no contract of employment involved with the Judges. The court held that Office-holders do not necessarily hold office pursuant to any kind of contract.
Regarding the matter of Crown employment, the court stated that section 83(2) and (9) of the Equality Act 2010, defines “employment” as covering “Crown employment” as defined in section 191 of the 1996 Act.
The appellant also argued that the failure to extend the protection of Part IVA to judicial office-holders is a violation of her rights under article 14 of the ECHR.
The Court held that there is no evidence at all that either the executive or Parliament addressed their minds to the exclusion of the judiciary from the protection of Part IVA. Therefore, the court concluded that there was a violation of the right to freedom of expression and the Employment Rights Act should be read and given effect so as to extend its whistle-blowing protection to the holders of judicial office. [Gilham v. Ministry of Justice,  1 WLR 5905, decided on 16-10-2019]