Public Interest Disclosures and Protection from Detriment
Last week, the Supreme Court heard the case of Gilham v Ministry of Justice which concerned whether a judge could be protected as a “worker” under whistleblowing legislation.
Whistleblowing legislation gives employees and workers special protection from being dismissed or suffering detrimental treatment because they have made a “protected disclosure” (i.e. blown the whistle”). The law relating to whistle-blowing is contained under the Employment Rights Act 1996.
To be protected, the individual must be a ‘worker’ within the meaning of Section 230(3) of the Employment Rights Act 1996 which defines a worker as someone who:
“has entered into or works under …. a contract of employment, or any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services”
The existence of a contract is essential to determine “worker” status and therefore, before this case came before the courts, it was assumed that “office holders”, such as judges, were not protected under the whistleblowing legislation as their duties and obligations are governed by statute and not by the terms and conditions of a contract.
As well as establishing “worker” status, the individual also has to show that their disclosure is one that is protected under the whistle blowing provisions. In order for their disclosure to qualify for protection, the worker making the disclosure must reasonably believe that it is both in the public interest and that it tends to show that one of more of the following is either happening, has happened, or is likely to happen in the future:
- A criminal offence
- The breach of a legal obligation
- A miscarriage of justice
- A danger to the health and safety of any individual
- Damage to the environment
- A deliberate attempt to conceal any of the above.
Claire Gilham, a district judge, raised complaints in 2011 about the impact of austerity measures introduced by the Ministry of Justice on the administration of justice– complaints which she argued amounted to protected disclosures as she believed a miscarriage of justice was likely to occur.
After writing to a senior judge with her concerns, Judge Claire Gilham alleged that she was then bullied and overworked to the point that she eventually suffered a nervous breakdown. However, when she brought a claim under whistleblowing legislation for the detrimental treatment she said she suffered, she was told by the Employment Tribunal, the Employment Appeal Tribunal and lastly by the Court of Appeal that she could not claim protection as a whistle blower because she was not a “worker”.
The Court of Appeal held that judicial office-holders were not “workers” as defined under the Employment Rights Act 1996 because they do not work under any form of contract.
Judge Gilham appealed to the Supreme Court.
The Supreme Court agreed that, according to the definition of a “worker” under the Employment Rights Act 1996, she was not a worker but an office holder.
However – and here is the interesting bit – the Supreme Court was asked to decide whether this failure to convey whistle blowing protection to judicial office holders, amounted to a breach of her human rights under the European Convention of Human Rights. Specifically, did it breach Article 10 of the Convention which protects the right to freedom of expression and/or Article 14 of the Convention which prohibits discrimination in relation to all Convention rights (including the right to freedom of expression)?
The Supreme Court unanimously upheld that there had been a breach of Article 14 of the European Convention of Human Rights. The Supreme Court concluded that the wording of Article 14 of the European Convention protected not only workers but judges and office-holders too. As UK law must (currently) be interpreted in accordance with the European Convention of Human Rights, the Supreme Court declared that the Employment Rights Act 1996 “should be read and given effect so as to extend its whistle-blowing protection to the holders of judicial offices”.
Points to Note
On first glance, this decision doesn’t seem to have much practical significance to businesses. However, the importance of the judgement is not so much that it extends whistle-blowing protection to judges, but that the ruling could potentially extend protection to other non-contractual office holders such as company directors, trustees or members of the clergy.
So, whistle-blowing protection may now cover a far wider group of individuals than before (and possibly more than Parliament intended).
This judgement also gives us a fairly rare example of how the rights under the European Convention of Human Rights can be used to broaden the protection afforded to individuals under UK employment law.