Gilham v Ministry of Justice: SC 16 Oct 2019

The Court was asked whether a district judge qualifies as a ‘worker’ for the purpose of the protection given to whistle-blowers under Part IVA of the 1996 Act, and if not then was the absence of protection an infringement of her human rights.
Held: As an office holder, she was neither employee nor worker, and therefore could not have the advantage of protection as a whistleblower: ‘the definition of ‘worker’ which is in issue in the present case is far from unusual. It is also clear that Parliament has used a number of different formulae in order to define the scope of protection of different pieces of employment legislation. It may well be that the line which it has drawn is open to criticism from those who are dissatisfied with the lack of apparent protection for them. For example, they may qualify as ‘workers’ but may be excluded from the definition of ’employees’ for the purpose of the law of unfair dismissal. Nevertheless, that is the policy choice which the democratically elected Parliament of the United Kingdom has made.
In the present context, it seems to us that what is criticised . . is the policy choice which Parliament has made to give protection under the ‘whistleblowing’ provisions of the 1996 Act to a category of persons which has the effect of excluding office-holders and, in particular, judges. However, Parliament has not left those people totally without protection in the present context. ‘

Judges:

Lady Hale, President, Lord Kerr, Lord Carnwath, Lady Arden, Sir Declan Morgan

Citations:

[2019] UKSC 44, [2020] 1 All ER 1, [2020] HRLR 147, [2019] ICR 1655, [2019] 1 WLR 5905, UKSC 2018/0014

Links:

Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC 2019 Jun 05 am Video, SC 2019 Jun 05 pm Video, SC 2019 Jun 06 am Video, SC 2019 Jun 06 pm Video

Statutes:

Employment Rights Act 1996 230(3)(b), European Convention on Human Right, Public Interest Disclosure Act 1998

Jurisdiction:

England and Wales

Citing:

CitedPerceval-Price, and others v Department of Economic Development etc CANI 12-Apr-2000
A full-time a full-time chairman of industrial tribunals, a full time chairman of social security appeal tribunals, and a social security commissioner are workers within the meaning of the European legislation, even though, by domestic legislation . .
CitedO’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .
At EATGilham v Ministry of Justice EAT 31-Oct-2016
Jurisdictional Points: Worker, Employee or Neither – The Employment Judge made no error of law in concluding that District Judges are office-holders and do not also work under a contract of employment or for services. . .
Appeal from (CA)Gilham v Ministry of Justice CA 21-Dec-2017
Appeal by employment judge against dismissal of whistleblower’s claim.
Held: Dismissed. An employment judge is an office-holder, and neither office holder nor worker. . .
CitedMcMillan v Guest HL 1942
The House considered whether the taxpayer held a public office.
Held: Lord Wright: The word ‘office’ as applied in an employment law context is of indefinite content. Lord Atkin said: ‘Without adopting the sentence as a complete definition one . .
CitedMethodist Conference v Preston SC 15-May-2013
Minister was not an employee
The claimant asserted unfair dismissal. The Conference said that as an ordained minister she was not an employee, and was outwith the jurisdiction of such a claim.
Held: The Conference’s appeal succeeded (Baroness Hale dissenting). The essence . .
CitedPercy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
CitedMiles v Wakefield Metropolitan District Council HL 1987
The claimant was a superintendent registrar of Births Deaths and Marriages. His union instructed him not to conduct weddings on Saturdays. He had been told that if he failed to perform his full range of duties on a Saturday (including marriages), he . .
CitedRidge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed without being given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his behaviour. He . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Human Rights

Updated: 21 April 2022; Ref: scu.642826