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Employment: Gilham v Ministry of Justice [2019] UKSC 44, [2019] 1 WLR 5905

This appeal considered the status of judicial office holders in the context of statutory protection bestowed upon whistle-blowers.

Issues

There were three issues:

  1. Whether a 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 ERA 1996;
  2. If not, whether this is discrimination in the enjoyment of the right to freedom of expression under the Convention; and
  3. If so, what is the remedy?

Employment

Judges hold a statutory office. They do not necessarily hold office pursuant to any kind of contract, however, they may do so under a contract with the person or body for whom they undertake to perform work or services. To decide, it is necessary to look at (at least) three factors.

First, the manner in which the judge was engaged. Secondly, the source and character of the rules governing service. Thirdly, the overall, constitutional context.

The President of the Supreme Court found that:

“Taken together, all of these factors point against the existence of a contractual relationship between a judge and the executive or any member of it. Still less do they suggest a contractual relationship between the judge and the Lord Chief Justice.”

It is inferred that a judge is not a ‘person in Crown employment’ due to the existence of sections 50, 51, and 83(2) and (9) of the Equality Act 2010.

Discrimination

The four questions when analysing discrimination under the Convention are as follows:

  1. Do the facts fall within the ambit of one of the Convention rights;
  2. Has the applicant been treated less favourably than others in an analogous situation;
  3. Is the reason for that less favourable treatment one of the listed grounds or some ‘other status’; and
  4. Is that difference without reasonable justification (in other words, a proportionate means of achieving a legitimate aim)?

The answer to all four questions is “clearly yes”.

Remedy

The ERA 1996 should be read, and given effect, so as to extend its whistle-blowing protection to the holders of judicial office.

Disposal

The appeal was allowed. The case was remitted to the Employment Tribunal on the basis that the appellant is entitled to claim the protection given to whistle-blowers.

Dominic Bright / 24th Nov 2019


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