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matthew-purchaseGilham v Ministry of Justice , heard 5 June 2019 and 6 June 2019.

Background to the appeal

Claire Gilham is a district judge. She claims that she was subjected to various detriments as a result of making complaints about her judicial workload and the poor management of the courts.

The issue is whether she was a ‘worker’ within the meaning of The Employment Rights Act 1996 (‘the ERA’), s 230 so as to be able to bring a claim in the employment tribunal for ‘whistleblowing detriment’. There are two definitions of a ‘worker’, each of which require the individual to have entered into a contract to provide work.

Ms Gilham contended that:

  • she had entered into such a contract with the Lord Chancellor; or
  • she must be treated as a ‘worker’ pursuant to the Human Rights Act 1998 (‘the HRA’), s3 as otherwise she would have no remedy for a breach of her rights under the European Convention on Human Rights, art 10 and 14.

The Court of Appeal judgment [2017] EWCA Civ 2220

Gloster, Underhill and Singh LJJ held that the employment tribunal was right to reject Ms Gilham’s claim.

Contract

The Court held that Ms Gilham had not entered into a contract with the Lord Chancellor. The reasoning was basically as follows:

  • In principle, an office-holder could also be engaged under a contract.
  • The language used in the correspondence between the claimant and the Lord Chancellor gave rise to “superficial indicia” of contract.
  • However: (i) the main rights and obligations of judicial office-holders derived from statute; (ii) there is an established understanding that judges are not in a contractual relationship; (iii) it is desirable that judges should not be in a contractual relationship with the Executive because of their constitutional functions; and (iv) many of the relevant statutory functions were not conferred on the Lord Chancellor at all (for example, the Queen appoints district judges, who swear to serve her, and the Lord Chief Justice is responsible for discipline and the assignment of work).

Article 10: the right to freedom of expression

The Court accepted that:

  • Article 10 may, in some cases, protect ‘whistleblowing’.
  • Ms Gilham was entitled under the HRA to an adequate remedy for any breach of her Convention rights (though there was no analysis as to why this was so).
  • If necessary, the ERA, s230 could be interpreted, pursuant to the HRA, s3 so as to enable to her bring a claim in the employment tribunal.

However, the Court held that Ms Gilham’s Article 10 rights were adequately protected by:

  • the statutory protections conferred on judges in respect of security of tenure and salary;
  • the existence of the judicial grievance procedure; and
  • the HRA itself: since the Ministry of Justice was a public body, Ms Gilham was entitled to bring a claim for any breach of the HRA, art 10, s6.

Article 14: the protection against discrimination

The Court held that there was no breach of Article 14 either because:

  • Ms Gilham was not treated differently from others on the ground of any relevant “status”. The legislation did not draw a line between ‘office-holders’ and others (and would cover some office-holders: see paragraph 5.1 above). In reality the line was drawn by reference to the existence of a particular sort of contract, which was not a “personal characteristic”.
  • She was not in an analogous position to those who fell within the scope of the ERA, s230 for two reasons: first, unlike employees of private employers, she had a right to seek relief under the HRA; secondly, judges held a special constitutional and statutory position.
  • Any discrimination was not ‘manifestly without reasonable foundation’ and so was justified. Lines have to be drawn in this context, and it is not as though Ms Gilham was left without any remedy at all: see paragraph 7 above.

See Part 2 of this Case Preview here.