A complaint of detrimental treatment for whistle blowing may only be brought before an Employment Tribunal (ET) by a ‘worker’, within the meaning of the Employment Rights Act 1996. The definition of that word has proved perennially difficult but, in a guideline decision, the Court of Appeal has ruled that it does not embrace members of the judiciary (Gilham v Ministry of Justice).
The case concerned a district judge who claimed that she had suffered detriments due to complaints she had made about allegedly excessive judicial workloads and poor and unsafe working conditions in courts where she sat. Her case was, however, rejected by an ET, and subsequently by the Employment Appeal Tribunal, on the basis that she was not a worker.
In dismissing her appeal against the latter decision, the Court found that she was an office-holder whose rights and obligations derived from statute and not from any contractual relationship with the Lord Chancellor or the Ministry of Justice. Her obligations were symbolised by the judicial oath she had taken and the correspondence that preceded her formal appointment made no mention of a contract.
Her functions and the duration of her appointment were set by statute and she could only be removed from office for misbehaviour, or incapacity, following consultation between the Lord Chancellor and the Lord Chief Justice. The general understanding, at least amongst lawyers, is that judges are office-holders only, not serving under any kind of contract, and that they are in a different position from ordinary civil servants or other Crown employees.
The Court also rejected arguments that excluding the district judge from the definition of worker violated Articles 10 and 14 of the European Convention on Human Rights, which respectively enshrine the right to freedom of expression and ban discrimination. The Court noted that, if the position of the judiciary was considered anomalous, that could only be remedied by Parliament.
For advice on whistle blowing and other employment law matters, please contact Jonathan Leach, Director and Head of Employment Department on 01254 67 22 22 or complete our online enquiry form discuss your concerns with one of our team of expert advisors.