Gilham v Ministry of Justice

Factual and Procedural Background

The Appellant, appointed as a district judge in 2006, raised concerns about court accommodation, workload and administrative failures following cost-cutting measures affecting her courts. She lodged what she considered “protected disclosures” under Part IVA of the Employment Rights Act 1996 (the 1996 Act). Alleging bullying, victimisation and serious health detriment, she brought two claims in the Employment Tribunal in 2015: (1) disability discrimination (derived from EU law) and (2) whistle-blowing detriments (not EU-derived). The Respondent—here anonymised as “Respondent”—contended that the Appellant was not a “worker” for whistle-blowing purposes. Both the Employment Tribunal and subsequent appellate courts agreed, also rejecting human-rights-based arguments. The Supreme Court (constituted by Judge Hale and others) heard a further appeal on the Appellant’s worker status, Crown-employment status and her Convention rights.

Legal Issues Presented

1. Does a district judge fall within limb (b) of the definition of “worker” in s 230(3) of the 1996 Act for the purposes of whistle-blowing protection?
2. Alternatively, is a district judge a person in Crown employment under s 191 of the 1996 Act?
3. If neither limb applies, does excluding district judges from Part IVA protection breach Article 10, or Article 14 read with Article 10, of the European Convention on Human Rights (ECHR)?
4. If a breach exists, can the court remedy the incompatibility through an interpretive approach under s 3 Human Rights Act 1998 (HRA), or is some other remedy required?

Arguments of the Parties

Appellant's Arguments

• She undertook to perform work personally and therefore satisfied limb (b) of s 230(3).
• Even absent a contract, she was in “Crown employment” within s 191.
• Exclusion from Part IVA protection discriminates against her occupational “status,” violating Articles 10 and 14 ECHR.
• Section 3 HRA permits (and requires) reading s 230(3) or s 191 so as to include judicial office-holders.

Respondent's Arguments

• Judges are statutory office-holders, not contractual workers; no contract exists with any identifiable employer.
• Section 191 was never intended to cover the independent judiciary.
• Any differential treatment is a permissible policy choice within Parliament’s wide margin of appreciation in socio-economic matters.
• Reading words into the 1996 Act to include judges would go “against the grain” of the legislation.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Hale identified that judges undoubtedly perform personal work but the key inquiry is whether that work arises under a contract. Examining appointment letters, statutory provisions governing salary, tenure, pensions, deployment and discipline, and the constitutional separation of powers, the Court concluded no contract was intended; hence judges are not limb (b) “workers” on an ordinary reading.

Turning to s 191, the Court found judges are not in “Crown employment.” They neither serve a government department nor work “under or for the purposes of” the Lord Chief Justice within the meaning of the section.

The exclusion nonetheless breached Article 14 read with Article 10 ECHR. Judges suffer detriments (e.g., bullying) that may inhibit protected disclosures; they are treated less favourably than employees and limb (b) workers; “judicial office-holder” is a relevant “status”; and no legitimate aim was offered for the differential treatment. Welfare-benefit deference jurisprudence was inapposite, and the Respondent failed to justify the exclusion.

As the primary remedy under HRA s 3 is interpretive, the Court considered whether to read words into s 230(3)(b). Precedent (e.g., O’Brien) showed identical wording had already been interpreted to include judges for EU purposes, and doing so would not undermine fundamental features of the 1996 Act. The Court therefore held it “possible” and obligatory to construe “worker” so as to encompass judicial office-holders for whistle-blowing protection. Equivalent Northern Ireland provisions should be read the same way.

Holding and Implications

APPEAL ALLOWED. The statute must be read so that district judges (and other judicial office-holders) are “workers” for the limited purpose of Part IVA whistle-blowing protection. The matter is remitted to the Employment Tribunal for substantive determination.

Implications: Judicial office-holders throughout the United Kingdom and Northern Ireland may now invoke whistle-blowing provisions against detriments, aligning their protection with that of other workers. The decision relies on statutory interpretation rather than legislative amendment, setting a precedent for expansive use of HRA s 3 where no contrary fundamental feature exists.