In a latest development with far reaching consequences not for India but for England, the Supreme Court of UK has gone all guns blazing by categorically and courageously pronouncing in Gilham (Appellant) v Ministry of Justice (Respondent) [2019] UKSC 44 on appeal from [2017] EWCA Civ 2220 and delivered on October 16, 2019 wherein it was explicitly held that the whistle-blowing protection envisaged under Employment Rights Act should be extended to the holders of judicial office. It was held that the exclusion of Judges from the whistle-blowing protection in Part IVA of the Employment Rights Act is in breach of their rights under Article 14 read with Article 10 of the European Convention on Human Rights. Very rightly so!
To start with, this latest, landmark and extremely laudable and unanimous judgment delivered by Lady Hale who is President of UK Supreme Court for herself, Lord Kerr, Lord Carnwath, Lady Arden and Sir Declan Morgan sets the ball rolling in para 1 of this noteworthy judgment wherein it is observed that, “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?”
While defining worker, para 2 then states that, “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.””
To be sure, para 3 then states that, “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 history of the case
To recapitulate, it is then enumerated in para 4 that, “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 “lifetime” 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 country courts on the Wales and Chester circuit.”
Truth be told, para 5 then specifies that, “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.”
To be sure, it is then disclosed in para 6 that, “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 discloures” within the meaning of section 43A.”
As things stand, para 7 then lays bare that, “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.”
Importantly, it is then pointed out in para 8 that, “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 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.”
Furthermore, it is then pointed out in para 9 that, “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.”
More importantly, it is then explicitly and elegantly laid down in para 44 that, “Bearing in mind, therefore, the parallel seen in Ghaidan v Godin-Mendoza between section 3(1) and conforming interpretation 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.”
Most importantly, it is then held eloquently and effectively in para 45 that, “The relevant provisions of the Employment Rights Act extend to both England and Wales and Scotland (section 244) but not Northern Ireland. However, the equivalent provisions of the Employment Rights (Northern Ireland) Order 1996 (as amended by the Public Interest Disclosure (Northern Ireland) Order 1998) are to the same effect; article 3(3) defines “worker” in the same times as section 230(3); articles 67A, 67B, 67C define protected disclosures, qualifying disclosures and those to whom such disclosures may be made in the same way as in Part IVA of the 1996 Act and articles 70B and 71(1A) provide that a maker of a protected disclosure shall not be subjected to any detriment for doing so and for complaints to an employment tribunal. Those provisions too should be read and given effect so as to extend the protection given to whistle-blowers to the holders of judicial office.”
Lastly, it is then held in para 46 that, “I would therefore allow this appeal and remit the case to the Employment Tribunal on the basis that the appellant is entitled to claim the protection of Part IVA of the 1996 Act.”
On a concluding note, it may well be said that the UK Supreme Court has very rightly minced just no words in reaching the palpable conclusion that whistle blowing protection should be extended to Judges. It rightly deduced that, “To give the judiciary such protection might be thought to enhance their independence by reducing the risk that they might be tempted to “go public” with their concerns, because of the fear that there was no other avenue available to them, and thus unwillingly be drawn into what might be seen as a political debate.” No doubt, judiciary is the bedrock of democracy and Judges are the most important pillars of judiciary and so it has been very rightly held by the UK Supreme Court that whistle blowing protection should be extended to the holders of judicial office!
Sanjeev Sirohi