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Legal Corner: Supreme Court expands whistleblowing protection

27th Dec 2019

The Supreme Court had to consider the question of whether the protection afforded to employees who are ‘whistle-blowers’ at work also extends to officeholders.

Ms Gilham was appointed as a District Judge in 2006. In 2010, as part of austerity measure, a major cost-cutting exercise was undertaken to the court services.

Ms Gilham had several concerns relating to the cuts, in particular, the lack of appropriate and secure courtrooms, the increase in judges’ workload and other administrative failures.

She initially raised these informally with the local judges and senior court managers, and later submitted a formal grievance. Her complaints were dismissed as being based on her ‘personal working style’.

Thereafter, Ms Gilham felt that she was undermined, ignored and bullied by her fellow judges and court staff. Ms Gilham’s health deteriorated such that she was diagnosed as suffering from a psychiatric injury.

Ms Gilham brought a claim in the employment tribunal alleging that she had been discriminated against due to her disability. She also alleged that the concerns she had raised the amount to ‘protected disclosures’, and that she had suffered a detriment for raising them such that she was entitled to bring a claim as a whistle-blower.

However, although Ms Gilham had been appointed to her judicial position by the then Lord Chancellor, it was considered to be an officeholder rather than an employee or a worker. There was no contractual relationship between her and Lord Chancellor, or between her and the Ministry of Justice.

Her disability discrimination claim was permitted to proceed as an earlier case had held that judges met the definition of a worker for a claim under the Equality Act. However, no such determination had been made for the whistleblowing provisions.

The Ministry of Justice (against whom Ms Gilham brought her claim) argued that since she was an officeholder, she was not entitled to pursue such a claim. The Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal all agreed with the Ministry of Justice.

The Supreme Court took a different view. They decided that although Ms Gilham did not meet the definition of a worker, that effectively meant that judicial post holders were excluded from the whistle-blowing protections.

This interfered with her right to freedom of speech under Article 10 of the European Convention on Human Rights, as well as her right under Article 14 not to be discriminated against in her enjoyment of the rights under the European Convention on Human Rights.

There was no evidence that Parliament had taken account of the fact that the provisions appeared to exclude the judiciary, and there was no legitimate reason put forward by the MOJ to justify excluding judges from protection.

In the circumstances, the Supreme Court decided that it was incumbent upon them to interpret the whistleblowing provisions in a way that made them compatible with Convention rights. Therefore, the whistle-blowing provisions should be read as applying to officeholders as well as employees and workers.

This decision does not only apply to judges. Many people hold positions as ‘office holders’, such as company directors, company secretaries and board members. Employers (and other organisations with officeholders) need to ensure that they have robust whistle-blowing policies in place that apply to all individuals who are now protected, and not just those whom they directly employ.

Safia Tharoo
Barrister, 40 Bedford Row, London

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