Gilham v Ministry of Justice [2019] UKSC 44

Appeal against the Court of Appeal’s findings that the Appellant was not a “worker” and that denying her whistle-blowing protection was not discrimination in the enjoyment of her right to freedom of expression and thus contrary to Article 14 of the ECHR read with Article 10. Appeal allowed.

The Appellant is a District Judge who raised concerns about cost-cutting reforms, in particular those affecting court room accommodation, increased workload and administrative failures. As a result of raising those concerns, she claimed that she was unfairly treated and her health was adversely affected. The Appellant brought a whistle-blowing claim under Part IVA of the Employment Rights Act 1996 ("ERA"), but the ET determined as a preliminary issue that she was not a "worker" under domestic law for the relevant purpose. Her appeals to the EAT and the Court of Appeal were dismissed. The Appellant appealed to the Supreme Court, arguing that she was a "worker" within the meaning of section 230(3)(b) ERA, or that she was in "Crown employment" within the meaning of section 191 ERA, or that her exclusion from whistle-blowing protection was a breach of her rights under Article 14 of the ECHR read with Article 10.

The Supreme Court found that the Appellant was not a "worker" under limb (b) of section 230(3) ERA, because of the lack of contractual relationship, and she was not in "Crown employment". However, the imposition of detriments suffered by the Appellant was an interference with her right to freedom of speech under Article 10 ECHR, and the failure to extend the Part IVA protections to judicial office-holders was a violation of the Appellant's right under Article 14. The remedy for the incompatibility of the exclusion of the judiciary from the protection of Part IVA ERA with the rights under the ECHR was to read and give effect to primary legislation in a way which was compatible with those rights, and it had been established that it was possible to interpret the definition of a 'limb (b)' worker to include judicial office-holders when required to do so by EU law. Accordingly, the case would be remitted to the ET on the basis that the Appellant was entitled to claim the protection of Part IVA ERA.

Published: 16/10/2019 15:04

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