Jason Braier on Supreme Court's decision in Gilham v MoJ (giving judges whistleblowing protection) on 16/10/2019

Please note :- The following has been adapted from Jason Braier's twitter thread and its not an article.

As we all know, Gilham v MoJ is about a District Judge who raised concerns about MoJ cuts, court security issues and excessive judicial workloads. She brought disability discrimination claims under the EqA and PID claims under the ERA. Whilst the disability discrim claim was able to proceed (O'Brien confirms judges are in 'employment' under the EqA facsimile of the s.230(3)(b) test thanks to EU law), the ET, EAT & CA held judges could not satisfy a domestic interpretation of s.230(3)(b) for PID purposes.

The SC looked 1st at the s.230(3)(b) test. Relying on the ministry cases (Percy & Preston) it held the key question to be whether the parties intended to enter contractual relationship defined by agreement or some other legal relationship defined by terms of statutory office.Key to finding judges were not in a s.230(3)(b) relationship (under domestic interpretation) was that the essential components of the relationship were derived from statute rather than terms to be negotiated between the appointer and appointee.The disquieting impact on separation of powers of suggesting a contractual relationship between the judiciary and executive also placed the final nail in the coffin of the s.230(3)(b) argument.

The next question was whether judges fell within the terms of Crown employment so that alternative route gave judges protection under Part IVA. The intervener's oral submissions seemed to attract Lady Hale at the hearing, but not enough to decide in favour.

Do judges fall within the s.191(3) definition?

The SC held not, deciding it was unlikely the draftsman intended this & noting that even though the EqA expressly protected those falling under s.191 ERA it separately protected officeholders including judicial officeholders.This left the SC to consider the arguments under the ECHR. The Court held that whilst there may be a breach of Art 10 (tantalisingly not going into that matter), there was certainly a breach of Art 14 with Art 10, and not one for which the remedy under s.7 HRA sufficed.The SC noted s.7 HRA gave no rights to bring an ET claim (cost-free), nor to receive injury to feelings compensation. One could add to the list the benefits of the burden of proof provision under s.48(2) & the ability to claim against private bodies & individuals, amongst others.There are 4 elements to the Art 14 test: facts within the ambit of an ECHR right; less favourable treatment than those in analogous situation; for a reason listed under Art 14 including 'other status'; without reasonable justification. The SC found all satisfied.On the 1st 3 questions: (i) the facts clearly fell within Art 10 (see, eg, Heinisch v Germany); (ii) judicial officeholders were treated less favourably than others making protected disclosures in their work; (iii) occupational classification could fall within other status.

On justification, the SC eschewed an argument that this was a matter of social policy to be given a wide margin of appreciation. 1st, the caselaw focused on welfare cases. 2nd, there had been no Parliamentary consideration of whether or not to include protection for judges.The 3rd (& somewhat fundamental) problem with the justification defence was that no basis of justification had been put forward.Finally, could the ERA be construed to include protection for judges? After considering the usual HRA authorities on interpretation (Ghaidan et al) & the ease with which the SC construed s.230(3)(b) to include judges for EU purposes in O'Brien, the SC held s.230(3)(b) could.o there we have it. Judges can now all make protected disclosures about the negative impacts of excessive workload & await the detriment. Excellent victory for the intervenors & common sense. 

18th Oct 2019

Jason Braier

Call 2002