Are judges workers for the purposes of whistleblower protection?
Yes, held the Supreme Court in Gilham v Ministry of Justice.
District Judge Gilham raised concerns, amounting to protected disclosures, about a number of cuts made to local services in 2011. In a claim that has not yet been decided, she alleged that she had been subjected to detriments because of those disclosures. The tribunal, EAT, and Court of Appeal all decided that she was not a worker for the purposes of the whistleblower provisions in the Employment Rights Act 1996.
The Supreme Court held, relying on the right not to be discriminated against in her freedom of expression under articles 10 and 14 of the European Convention on Human Rights, that the Employment Rights Act had to be interpreted so that DJ Gilham is a worker. Rejecting an argument that section 3 Human Rights Act 1998 should not be used in this way, Lady Hale giving the judgment of the court, said:
"Bearing in mind...the parallel...between section 3(1) [Human Rights Act 1998] and conforming interpretation[s] in EU law, its strictures against attaching decisive importance to the precise adjustment needed to the language of the provisions, and the ease with which this court interpreted identical language to include judges as limb (b) workers in O'Brien, I can reach no other conclusion than that the Employment Rights Act should be read and given effect so as to extend its whistle-blowing protection to the holders of judicial office."
Thanks to Matthew Jackson of 10 KBW for preparing this case summary.