Gilham v Ministry of Justice
| Jurisdiction | England & Wales |
| Judge | Lord Carnwath,Lord Kerr,Lady Hale,Sir Declan Morgan,Lady Arden |
| Judgment Date | 16 October 2019 |
| Neutral Citation | [2019] UKSC 44 |
| Date | 16 October 2019 |
| Court | Supreme Court |
[2019] UKSC 44
Lady Hale, President
Lord Kerr
Lord Carnwath
Lady Arden
Sir Declan Morgan
Appellant
Karon Monaghan QC
(Instructed by Irwin Mitchell LLP (London))
Respondent
Ben Collins QC
Robert Moretto
(Instructed by The Government Legal Department)
Intervener (Protect)
Daniel Stilitz QC
Christopher Milsom
(Instructed by Leigh Day)
Heard on 5 and 6 June 2019
( with whom Lord Kerr, Lord Carnwath, Lady Arden and Sir Declan Morgan agree)
This case is about the employment status of district judges, but it could apply to the holder of any judicial office. The issue is whether a district judge qualifies as a “worker” or a “person in Crown employment” for the purpose of the protection given to whistle-blowers under Part IVA of the Employment Rights Act 1996 (“the 1996 Act”). If a district judge does not on the face of it qualify for whistle-blower protection, the further question is whether this is discrimination against her in the enjoyment of her right to freedom of expression under the European Convention on Human Rights. And if it is, what is the remedy?
In section 230(3) of the 1996 Act, a “worker” is defined as
“an individual who has entered into or works under (or where the employment has ceased, worked under) — (a) a contract of employment, or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.”
The appellant does not claim that a judge works under a contract of employment within limb (a) of that definition, but contends that she does fall within limb (b) of the definition.
The appellant was appointed a district judge by the then Lord Chancellor, Lord Falconer of Thoroton, with effect from 6 February 2006. Under section 6 of the County Courts Act 1984, as it then stood, district judges were appointed by the Lord Chancellor. As it now stands, they are appointed by Her Majesty the Queen on the recommendation of the Lord Chancellor. In October 2005, the appellant had been sent a letter offering her appointment which talked in terms of her accepting that offer. The letter itself contained several stipulations as to the duration of her appointment, her salary, her pension on retirement, and other matters. Enclosed with the letter was a memorandum entitled “District Judges — Memorandum on conditions of employment and terms of service”. This was a detailed document, which included terms as to sitting days, sick pay, maternity, paternity and adoption leave, training, the prohibition of legal practice, relations with the press and media, outside activities, and much more. The memorandum made it clear that the salary was taxed under Schedule E to the Income Tax Act and that the judge was an employed earner for the purpose of national insurance contributions. Although described as a “life-time” appointment, a judge is required to vacate office on her 70th birthday (unless extended) and can resign before that date. The appellant's Instrument of Appointment, signed by the Lord Chancellor on 27 January 2006, simply talked in terms of his approving her to sit at each of the county courts on the Wales and Chester circuit.
In fact, she first sat at the Crewe County Court and in 2009 transferred to the Warrington County Court. In 2010, the Cheshire courts were transferred to the Northern Circuit and major cost cutting reforms were announced. In 2011, the Runcorn County Court was closed and the business transferred to Warrington, as were some tribunal sittings. The appellant raised a number of concerns relating to the cuts, in particular about the lack of appropriate and secure court room accommodation, the severely increased workload placed upon the district judges, and administrative failures. She raised these with the local leadership judges and senior managers in Her Majesty's Courts and Tribunals Service and eventually in a formal grievance.
She claims that her complaints fell within the definition of “qualifying disclosures” under section 43B of the 1996 Act, in particular as tending to show a failure to comply with legal obligations, that miscarriages of justice were likely, or that the health and safety of any individual had been, is being or is likely to be endangered. The disclosures were made to an employer or other responsible person within the meaning of section 43C of the 1996 Act and thus they were “protected disclosures” within the meaning of section 43A.
Under section 47B(1) of the 1996 Act, a worker has the right “not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure”. The appellant claims that she was subjected to a number of detriments as a result of her complaints: a significant delay in investigating her grievance; being seriously bullied, ignored and undermined by her fellow judges and court staff; being informed that her workload and concerns were simply a “personal working style choice”; and inadequate steps to support her in returning to work; she also claims that a severe degradation in her health, resulting in psychiatric injury and a disability under the Equality Act 2010, was such a detriment. The appellant was signed off work due to stress from the end of January 2013 but has recently returned.
In February 2015 the appellant made a two-part claim in the Employment Tribunal. Both parts of her claim depended upon her being a “worker” within the meaning of section 230(3) of the 1996 Act (or having the same protection as such a worker). One part of her claim was for disability discrimination under the Equality Act 2010, as a result of failure to make reasonable adjustments to cater for her disability. This claim is derived from European Union law. It is therefore accepted that, as a result of the decision of this court in O'Brien v Ministry of Justice (formerly Department for Constitutional Affairs) [2013] UKSC 6; [2013] 1 WLR 522, in the light of the guidance given by the Court of Justice of the European Union in (( Case C-393/10) [2012] ICR 955), a judge is a “worker” for the purpose of European Union law and national law has to be interpreted in conformity with that. That case concerned discrimination against part-time workers, but the same result was reached by the Court of Appeal for Northern Ireland in Perceval-Price v Department of Economic Development [2000] IRLR 380, that tribunal judges were “workers” for the purpose of discrimination on grounds of sex. Hence the disability discrimination claim will continue in any event.
The other part of her claim was under the “whistle-blowing” provisions in Part IVA of the 1996 Act, inserted by the Public Interest Disclosure Act 1998. These provisions are not derived from European Union law and accordingly the definition of “worker” does not have to be read so as to conform to the requirements of EU law. This means that a judge may have a different status in employment law, depending upon whether or not the employment right in question is derived from EU law.
In relation to the whistle-blowing claim, the Ministry of Justice objected that the appellant was not a “worker” as defined by section 230(3)(b) of the 1996 Act. At a preliminary hearing, the Employment Tribunal judge held that she was not a worker, that accordingly she had no protection against infringement of her right to freedom of expression under article 10 of the ECHR, but that it was not possible to read or give effect to section 230(3)(b) so as to give her that protection. The Employment Appeal Tribunal also held that she was not a worker, but found that there were adequate safeguards in place to protect freedom of speech for judges and there was therefore no need to read section 230(3)(b) so as to bring a judge within it, but that in any event it was not possible to do so: [2017] ICR 404. The Court of Appeal also held that the appellant was not a “worker”. The appellant was permitted also to raise for the first time the argument that denying her whistle-blowing protection was discrimination in the enjoyment of her right to freedom of expression and thus contrary to article 14 of the ECHR read with article 10. But she failed in that too: [2018] ICR 827.
On appeal to this court, the appellant continues to argue that she is a “worker” within the meaning of section 230(3)(b) of the 1996 Act. She also raises for the first time a new argument, that she is in “Crown employment” within the meaning of section 191 of the 1996 Act. If she fails in each of those, she continues to argue that her exclusion from whistle-blowing protection is a breach, either of her rights under article 10 or under article 14 read with article 10 of the ECHR and that either section 230(3)(b) or section 191 of the 1996 Act should be read and given effect so as to bring her within that protection.
It is not in dispute that a judge undertakes personally to perform work or services and that the recipient of that work or services is not a client or customer of the judge. The issue is whether that work or services is performed pursuant to a contract with the recipient of that work or services or pursuant to some different legal arrangement. Nor is it in dispute that judges hold a statutory office. In broad terms, an office has been defined (by Lord Atkin in McMillan v Guest [1942] AC 561, 564) as a “subsisting, permanent, substantive position which had an existence independent of the...
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