Supreme Court open up application of whistleblowing rights

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21 October, 2019

Rosalind Leahy

The Supreme Court has taken a purposive approach to the interpretation of domestic employment legislation in order to comply with human rights obligations and ensure that a district judge was protected following a whistleblowing claim.

The Public Interest Disclosure Act 1998 and Employment Rights Act 1996 ("ERA") provides protection for workers reporting malpractices by their employers or third parties against victimisation or dismissal. In Gilham v Ministry of Justice, the Supreme Court held that a district judge could bring a whistleblowing claim under s.47B of the ERA, despite not meeting the s.230(3) ERA definition of 'worker' (in the absence of a contract) or the s.191 ERA definition of 'Crown employment'.

Gilham was a district judge in the County Court system. In 2015 she brought an employment tribunal claim against the Ministry of Justice claiming she had suffered various detriments contrary to s.47B of the ERA as a result of making protected disclosures. In order to be successful with the claim and claim the protection afforded by s.47B, she needed to demonstrate that she fell within the definition of 'worker 'under s.230(3) of the ERA. She argued that she fell within the definition as she worked under a contract to provide work or services personally for the Ministry of Justice or the Lord Chancellor. In the absence of agreement to that interpretation, she argued s.230(3) should be interpreted purposively in accordance with s.3 of the Human Rights Act 1998 ("HRA"), in order to protect her right to freedom of expression under Article 10 European Convention of Human Rights ("ECHR").

The Employment Tribunal held that such a contract did not exist and as such she did not fall within the definition of a worker entitling her to s.47B protection. The ET further held that it was not possible to carry out a purposive interpretation of the legislation to the extent that she would be afforded protection. The Employment Appeal Tribunal upheld the decision.

On appeal to the Court of Appeal, she advanced an additional argument, based on Article 14 of the ECHR that her inability to bring a whistleblowing claim amounted to discrimination on the ground of her 'other status' as a judicial office holder. The Court of Appeal dismissed her appeal, again on the basis that she was not a 'worker' in the absence of a contract. It held that, s.230(3) did not need to be construed more widely in order to protect her right to freedom of expression under Article 10 ECHR, since that right was enforceable against a public authority in the ordinary civil courts under s.7 ERA. Additionally, it held that no difference of treatment on the ground of any 'other status' for the purposes of Article 14 ECHR could be substantiated.

G appealed to the Supreme Court who held it was clear that Article 14 had been breached.

Essentially, it held she had been treated less favourably than others in an analogous situation, having been denied protection available to other employees and workers who make responsible public interest disclosures. No legitimate aim had been put forward for excluding individuals in her position. It had not been explained how denying whistleblowing protection to the judiciary could enhance judicial independence.

The Supreme Court held that s.3 of the HRA required the courts to read and give effect to primary legislation in a way which is compatible with the infringed Convention right. The House of Lords in Ghaidan v Godin-Mendoza 2004 set out that purposive interpretation is permitted provided it does not 'go against the grain' of the legislation in question or be inconsistent with some fundamental feature of the legislation. The Supreme Court in O'Brien v Ministry of Justice (Brief 968) established that it is possible to interpret the definition of a 'worker' to include judicial office-holders when required by EU law in respect of a different piece of legislation. The Supreme Court found that it would not 'go against the grain' of the ERA to interpret the legislation purposively to include the district judge and therefore allowed the appeal, remitting the whistleblowing claim to the employment tribunal.

For more information contact Rosalind Leahy in our Employment & HR department via email or phone on 01772 220185. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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