Gilham v Ministry of Justice [2017] EWCA Civ 2220

Appeal against the dismissal of a District Judge's claim under Part IVA of the Employment Rights Act 1996 claiming that she had been subjected to various detriments contrary to section 47B of the Act (i.e. whistleblowing) on the basis that she was not a worker within the meaning of the 1996 Act, because she was an office-holder and not a party to a contract falling under either limb of section 230 (3). Appeal dismissed.

The Appellant's primary case was that she fell within the terms of section 230 (3) as construed on ordinary domestic law principles, essentially because she did indeed work under a contract with the Ministry of Justice or the Lord Chancellor. However, she had an alternative case that even if that were not so the Court should apply section 3 of the Human Rights Act 1998 to achieve a construction of section 230 (3) under which she could be treated as a worker in order to avoid a breach of her rights under article 10 of the European Convention on Human Rights. She also advanced a further argument, based on article 14 of the Convention.

The Court of Appeal dismissed the appeal. The core rights and obligations of a judicial office-holder derive from statute and not from any relationship with the Lord Chancellor (or indeed any other member of the executive). The court also rejected the contention that section 230 (3) must be construed so as to extend to the Appellant's case in order to protect her rights under article 10 of the Convention. Finally, there would be no breach of article 14 if this Court maintained the interpretation of section 230 (3).

Published: 22/12/2017 16:02

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