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See Part One of this Case Preview here.matthew-purchase

Gilham v Ministry of Justice, heard 5 June 2019 and 6 June 2019

Some thoughts

Ms Gilham appealed on all three grounds. She also appears to raise the distinct but related question whether she can bring her claim as a ‘Crown employee’ within the meaning of the ERA, s191.

It would be surprising if the Supreme Court were to overturn established authority to the effect that judges are not appointed pursuant to a contract. However, such a result is possible: in O’Brien v Ministry of Justice ECJ C-393/10 (01 March 2012), the Supreme Court held that a judge was a ‘worker’ for the purposes of EU law (specifically the Part-Time Workers Framework Directive 97/81/EC).

The Court of Appeal’s reasoning on Article 10 raise some interesting questions. For example, the Court’s conclusion that Ms Gilham does already have adequate protection, particularly through the right to make a claim under the HRA itself, seems sound on the face of it. But some existing authorities have proceeded on the (albeit untested) premise that other legislation must be interpreted compatibly with the Convention rights so as to confer a remedy for any breach even though a claim under the HRA would have been available: see, for example, Mba v Merton London Borough Council [2013] EWCA Civ 1562. Further, this would leave open the lawfulness of the exclusion of office-holders who are not engaged by public bodies within the scope of the HRA.

Arguably, the Court of Appeal’s reasoning on Article 14 is the most vulnerable. In particular:

  • The courts are generally reluctant to hold that deliberate differential treatment is not done on the ground of some relevant ‘status’: see, for example, R (DA) v Secretary of State for Work and Pensions [2019] UKSC 21. Indeed, in R (Stevenson) v Secretary of State for Work and Pensions [2017] EWCA Civ 2123, Henderson LJ went so far as to say that “the need to establish status as a separate requirement has diminished almost to vanishing point”.
  • The courts are also disinclined to decide Article 14 cases on the basis that the comparators are not in an analogous situation other than in very obvious cases: see R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37. Generally, it is preferable to consider the nature of the differences in the context of justification.
  • The Court of Appeal’s application of the “manifestly without reasonable foundation” test when considering justification is also questionable. In DA, the Supreme Court confirmed that this test applies in the context of social welfare benefits, but even in that area the test has been controversial. It is far from clear that it is the correct test in the context of employment rights.

Nevertheless, even if there is room to challenge some aspects of the analysis, there would appear to be powerful arguments to the effect that the Court of Appeal’s conclusion was the correct one. This is a context in which a line must be drawn somewhere and it must be right that the Court was right to accord considerable respect to the assessment of Parliament as to where to draw it. As the Court observed, it is not as though the result is that a whistleblowing judge has no protection or remedy at all. And, whatever the position of other office-holders may be, judges are in a unique constitutional position which may make it difficult for the Supreme Court to hold that Parliament was required under Article 14 to confer the same whistleblowing rights on them as are conferred on (other) workers. However, judges do have some employment rights – see O’Brien cited above (and they probably also have the right not to be discriminated against under the Equality Act 2010, by analogy with P v Commissioner of Police for the Metropolis – [2017] UKSC 65 so the point is not at all obvious.

The question whether a judge is a ‘Crown employee’ raises related but different questions: it seems clear that section 191 imposes no requirement for a ‘contract’, which removes a major hurdle for Ms Gilham. However, this argument does pose other serious difficulties. It is difficult to view a judge as being an ‘employee’ at all as that term is generally understood. Further, if Ms Gilham is right on this point, it would seem to follow that judges have all the rights conferred by the ERA, including the right not to be unfairly dismissed, which would cut across the existing statutory regime.