Gilham v Ministry of Justice [2019] UKSC 44

A district judge raised concerns about court cuts and suffered alleged detriments. The Supreme Court held that whilst judges are not 'workers' under the Employment Rights Act 1996, excluding them from whistle-blowing protection breached Article 14 ECHR, requiring the statute to be read to include them.

Facts

The appellant, Claire Gilham, was appointed a district judge in 2006. Following the 2010 cost-cutting reforms and the closure of Runcorn County Court in 2011, she raised formal concerns about inadequate and insecure courtroom accommodation, significantly increased workloads on district judges, and administrative failures. These complaints were raised with local leadership judges, senior HMCTS managers, and eventually by way of formal grievance. She claimed these were ‘qualifying disclosures’ and ‘protected disclosures’ under sections 43A-43C of the Employment Rights Act 1996 (the 1996 Act).

She alleged she suffered detriments as a result: delayed grievance investigation, bullying, being ignored and undermined by fellow judges and court staff, being told her concerns reflected a ‘personal working style choice’, and ultimately suffered psychiatric injury resulting in disability. She was signed off work from January 2013. In February 2015 she commenced Employment Tribunal proceedings, including a whistle-blowing claim under Part IVA of the 1996 Act.

The Employment Tribunal, EAT, and Court of Appeal all held she was not a ‘worker’ under section 230(3)(b) and could not invoke whistle-blowing protection.

Issues

The Supreme Court had to determine: (i) whether a district judge is a ‘worker’ under section 230(3)(b) of the 1996 Act; (ii) whether a district judge is in ‘Crown employment’ under section 191; (iii) whether exclusion from whistle-blowing protection breaches Article 10 ECHR, or Article 14 read with Article 10; and (iv) if incompatible, what remedy is available.

Arguments

Appellant

She contended she fell within limb (b) of the worker definition, or alternatively that she was in Crown employment. Failing those, she argued that excluding judicial office-holders from whistle-blowing protection breached her Convention rights, requiring section 230(3)(b) or section 191 to be read under section 3 of the Human Rights Act 1998 to include her.

Respondent

The Ministry of Justice argued she was not a worker, not in Crown employment, and that any interpretive reading-in would ‘cut across a fundamental feature’ or ‘go against the grain’ of the 1996 Act. It further argued for a broad margin of appreciation on the grounds that this was social policy and the status involved was not a ‘suspect’ ground.

Judgment

Whether a judge is a ‘worker’

Lady Hale, giving the judgment with which the other Justices agreed, held that a judge is not a worker under section 230(3)(b). Applying the approach in Preston v President of the Methodist Conference [2013] 2 AC 163, the question was whether the parties intended to enter into a contractual relationship or some other legal relationship defined by the terms of the statutory office. The manner of appointment is laid down by statute; the letter of appointment and memorandum did not use contractual language; essential components (salary, pension, tenure, removal, discipline) are governed by statute and not open to negotiation; responsibility for the judiciary is fragmented between the Lord Chancellor and the Lord Chief Justice; and the constitutional separation of powers tells against any contractual intent. Taken together, these factors pointed against any contractual relationship.

Crown employment

Judges are not employed ‘under or for the purposes of’ the Ministry of Justice or the Lord Chief Justice. They work for the administration of justice in accordance with their judicial oaths. Further, sections 50 and 51 of the Equality Act 2010 provide separately for judicial office-holders, which would have been unnecessary had they already been protected as persons in Crown employment.

Human rights

The Court found that imposing detriments such as bullying and victimisation for raising public interest disclosures could interfere with Article 10 freedom of expression. More significantly, applying the four-stage Article 14 analysis: (i) the facts fell within the ambit of Article 10; (ii) judicial office-holders are treated less favourably than employees and limb (b) workers regarding whistle-blowing protection; (iii) occupational classification as a judicial office-holder constitutes an ‘other status’; and (iv) the difference in treatment was not justified. The ‘manifestly without reasonable foundation’ test applies to welfare benefits cases, not employment policy. There was no evidence Parliament or the executive had considered excluding judges, so no ‘considered opinion’ to defer to. No legitimate aim had been advanced; denying protection did not enhance judicial independence—indeed, providing such protection might reduce the risk judges feel driven to raise concerns externally.

Remedy

Applying Ghaidan v Godin-Mendoza [2004] 2 AC 557, section 3(1) of the Human Rights Act 1998 permitted reading section 230(3)(b) to include judicial office-holders. The Court of Appeal had itself indicated this was possible, observing that the contractual basis was not a fundamental feature of the legislation. This court had already interpreted identical language to include judges in O’Brien v Ministry of Justice [2013] 1 WLR 522 under EU law. The equivalent provisions in the Employment Rights (Northern Ireland) Order 1996 are to be read likewise.

The appeal was allowed and the case remitted to the Employment Tribunal.

Implications

The decision extends Part IVA whistle-blowing protection to holders of judicial office, a significant constitutional development. It confirms that judges retain their non-contractual status as statutory office-holders but are nonetheless entitled to protection against detriment for making public interest disclosures. The judgment illustrates the robust use of section 3 of the Human Rights Act 1998 to read statutory language compatibly with Convention rights, reaffirming the principle that interpretive adjustment may go beyond literal or purposive construction provided it does not contradict fundamental features of the legislation.

The decision also clarifies the scope of the ‘manifestly without reasonable foundation’ test, restricting it largely to welfare benefits cases rather than employment policy, and confirms that occupational classification can qualify as ‘other status’ under Article 14. It underscores that where there is no evidence Parliament considered a particular exclusion, and no legitimate aim is identified, courts will be less willing to defer to the legislature. The ruling matters to all non-contractual office-holders who may now be able to invoke whistle-blower protection and to the wider judiciary, who previously lacked a statutory route to remedy detriments suffered because of legitimate public interest disclosures.

Verdict: Appeal allowed. The Supreme Court held that district judges (and other judicial office-holders) are entitled to the protection of Part IVA of the Employment Rights Act 1996. Although judges are not ‘workers’ within section 230(3)(b) nor in ‘Crown employment’ under section 191, their exclusion from whistle-blowing protection breached Article 14 read with Article 10 ECHR, and section 230(3)(b) must be read under section 3 of the Human Rights Act 1998 to include judicial office-holders. The case was remitted to the Employment Tribunal.

Source: Gilham v Ministry of Justice [2019] UKSC 44