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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
- 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?
- Alternatively, is a district judge a person in Crown employment under s 191 of the 1996 Act?
- 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)?
- 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
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| O’Brien v Ministry of Justice [2013] UKSC 6 | Judicial office-holders are “workers” for EU-derived rights | Demonstrated that identical wording had already been construed to include judges |
| Perceval-Price v Department of Economic Development [2000] IRLR 380 | Tribunal judges regarded as workers for sex-discrimination purposes | Supported continuation of Appellant’s disability claim irrespective of whistle-blowing issue |
| McMillan v Guest [1942] AC 561 | Definition of an “office” distinct from employment | Used to show judges hold a statutory office rather than a contractual post |
| Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73 | Office-holders can also have contracts | Illustrated possibility—but not inevitability—of concurrent contract |
| Miles v Wakefield MDC [1987] AC 539 | Questioned whether statutory office precludes parallel contract | Reinforced need to examine parties’ intentions |
| Ridge v Baldwin [1964] AC 40 | Public office-holders’ protection from unfair dismissal | Cited to contrast statutory safeguards with contractual ones |
| Preston v President of the Methodist Conference [2013] 2 AC 163 | Whether office-holder’s relationship is contractual depends on intention | Guided factual analysis of appointment documents and statutory context |
| Stec v United Kingdom (2006) 43 EHRR 47 | “Manifestly without reasonable foundation” test in welfare policy | Distinguished; Court held test inapplicable outside welfare-benefit context |
| RJM v Secretary of State for Work and Pensions [2008] UKHL 63 | Article 14 justification in welfare benefits | Part of welfare-benefit line of cases discussed and distinguished |
| Humphreys v Revenue and Customs Commrs [2012] UKSC 18 | Same as above | Distinguished |
| SG v Secretary of State for Work and Pensions [2015] UKSC 16 | Benefit-cap discrimination test | Distinguished |
| Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47 | Benefit discrimination | Distinguished |
| MA v Secretary of State for Work and Pensions [2016] UKSC 58 | “Bedroom tax” justification | Distinguished |
| HC v Secretary of State for Work and Pensions [2017] UKSC 73 | Welfare benefits for carers | Distinguished |
| DA v Secretary of State for Work and Pensions [2019] UKSC 21 | Revised benefit cap | Distinguished |
| In re G (A Child) [2008] UKHL 38 | Proportionality in social policy discrimination | Provided contrasting approach outside welfare benefits |
| R v Director of Public Prosecutions, ex p Kebilene [2000] 2 AC 326 | Judicial deference to elected decision-maker | Cited but held inapplicable due to absence of any considered policy choice |
| Litster v Forth Dry Dock Engineering [1990] 1 AC 546 | Wide interpretive duty for EU-compliant reading | Analogised to HRA s 3 interpretive duty |
| Pickstone v Freemans Plc [1989] AC 66 | Same as above | Analogised |
| In re S (Minors) [2002] UKHL 10 | Limits of judicial interpretation when conflicting with fundamental features | Guided inquiry into whether reading words in would “go against the grain” |
| Ghaidan v Godin-Mendoza [2004] UKHL 30 | Primary remedial role of HRA s 3 | Provided framework for interpretive remedy adopted |
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.
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