Can Office Holders be Protected by Whistleblowing Legislation?

In Gilham v Ministry of Justice, the Court of Appeal has held that judges are “office holders” and not “workers” and as a result are not entitled to legal protections afforded to whistleblowers.  The Court further held that this lack of protection does not result in a breach of judges’ rights to freedom of expression or freedom from discrimination.

In her role as a District Judge, Ms Gilham made various disclosures to a senior judge relating to unsafe working conditions and excessive workload in the courts where she worked.  Ms Gilham claimed that as a result of her disclosures she was subjected to detriments including being bullied and put under additional stress.  She consequently brought a claim against the Ministry of Justice under the whistleblowing provisions contained in the Employment Rights Act 1996, a claim predicated on the fact that her employment status was that of a “worker”, i.e. an individual who has entered into or works under a contract of employment.  The Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) both found Ms Gilham to be an “office holder” rather than a worker and therefore rejected her claim.  Ms Gilham appealed to the Court of Appeal.

In confirming the findings of the ET and EAT, the Court of Appeal held that a judge’s rights and obligations derive from statute rather than a contract of employment and as such Ms Gilham could not be classified as a “worker”.  Furthermore, the Court found that:

• where judges have ostensibly suffered a detriment as a result of “whistleblowing”, they have an adequate remedy under the Human Rights Act for a breach of ‘freedom of expression’ provisions; and
• the lack of whistleblowing protection for judges is not discriminatory, not least because the ability to claim an effective remedy under the Human Rights Act means judges are not disadvantaged in comparison to “workers”.

Comment:      On the face of it, this decision has implications for all office holders, who may find themselves unprotected by whistleblowing legislation and (where they do not work for a public body) unable to claim a remedy under the Human Rights Act for a breach of ‘freedom of expression’ provisions.  However, the Court of Appeal did note that it is possible for an office holder to also be party to a contract to perform the duties of that office, meaning that office holders in certain circumstances may still yet be protected by whistleblowing legislation.