A judge who is seeking a clarification in the law to recognise judges as workers will make her case at the Supreme Court this week.
In 2015 an employment tribunal ruled that judge Claire Gilham could not succeed in her claim for whistleblowing detriment against Warrington County Court because judges are not considered workers under the Employment Rights Act 1996. This decision was upheld by the Court of Appeal in 2017.
Whistleblowing
Rather, judges are considered to be “office holders” and are not entitled to the same rights as workers, such as whistleblowing protections, a minimum holiday allowance and rest breaks.
Her legal battle began in 2013 when she raised concerns about bullying, overwork, health and safety compliance, management style and workplace culture at Warrington County Court. She claimed her complaints were not dealt with satisfactorily and she was treated less favourably as a result of blowing the whistle.
She also made a complaint of disability discrimination because of the mental illness she suffered as a result of the court’s response to the whistleblowing. She claimed she was nearly forced into retirement on health grounds, but returned to work after her health improved.
On Wednesday and Thursday (5 and 6 June) Judge Gilham plans to argue in the Supreme Court that judges are workers as they should have a contract with the Lord Chancellor of the Ministry of Justice. However, according to the Court of Appeal, the core rights and obligations of a district judge derive from the statute, so there is no need to look for a contract to establish their basic rights and obligations.
Tomorrow she will argue that:
- District judges work under a contract with the Lord Chancellor, because they undertake to do or to personally perform work;
- If district judges are not workers, they are Crown employees. This usually encompasses civil servants, police officers, judicial officers, members of the armed forces and executive officials;
- Failing to extend whistleblowing protections to judges breaches their human rights to freedom of expression and for all human rights to be enjoyed without discrimination.
Emilie Cole, a lawyer at Irwin Mitchell – which is acting for Judge Gilham – said: “Everyone should have the right to blow the whistle, safe in the knowledge that they will be protected from harm for doing so.
“The background of this legal protection comes from a long line of high-profile disasters which caused avoidable, horrific deaths for many innocent people. Anything that stands in the way of an individual expressing concerns about health and safety and breaches of the law can’t be in the public interest or benefit wider society.”
However, a proposed new EU Directive would extend whistleblowing protections to cover more people with public interest concerns, such as job applicants, volunteers, non-executive directors and self-employed workers. Whistleblowing charity Protect is urging the government to adopt it so that UK whistleblowers are not unprotected after Brexit.
Cole said: “The EU Commission has published a proposal for a Directive on giving whistleblowing protection to workers. When this law is enacted, the meaning of ‘worker’ will need to be extended to the EU-compliant definition of ‘worker’, which as confirmed in the case of Ministry of Justice v O’Brien, included part time Recorders (Judges). For these reasons, the domestic legislation should be interpreted in a way which furthers, rather than limits protection for whistleblowers.”
The most interesting question jurisprudentially is whether the SC justices will be able to think fluidly enough to hold that the relevant human rights of judges must be effectively protected even if they are office-holders and not, stricto sensu, employees.