This appeal considered the status of judicial office holders in the context of statutory protection bestowed upon whistle-blowers.
There were three issues:
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.
The four questions when analysing discrimination under the Convention are as follows:
The answer to all four questions is “clearly yes”.
The ERA 1996 should be read, and given effect, so as to extend its whistle-blowing protection to the holders of judicial office.
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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