Ruth Moffett: Supreme Court finds for judges to have whistleblowing protections

Political and social feeling can often influence and shape laws, with employment law being no exception. Recently there has been an impetus towards providing workers and employees with greater workplace rights and protections.

Ruth Moffett is a Junior Associate at Clyde & Co

However, what about the rights to whistleblowing protections for those who are not classed as either an employee or a worker (like judges)? Are they simply left out to dry in working environments with no rights?

The UK Supreme Court unanimously answered “no” to this question in the recent decision of Gilham v Ministry of Justice [2019] UKSC 44, when it decided that judges were also entitled to whistleblowing protections outlined in the Employment Rights Act 1996.

In this case, District Judge Claire Gilham – based at Warrington County Court in Cheshire – raised concerns about the effect of cost-cutting reforms including a lack of secure courtrooms, severely increased workload and administrative failures.

As a result of these complaints, the judge claimed that she suffered a number of detriments including being bullied, ignored and undermined.

Judges are not viewed as employees or workers as they are office holders who have given an oath to the court they serve.

This means they are not typically able to rely on any rights outlined by the Employment Rights Act 1996, the piece of legislation which is seen as the “Holy Grail’ for employment rights in the UK.

However, the Supreme Court found that denying District Judge Gilham (and others in her position) the right to blow the whistle was incompatible with the rights to freedom of expression and to protection against discrimination based on status (in this case, office-holder) under Articles 10 and 14 of the European Convention of Human Rights.

Interestingly the Supreme Court rejected the argument that extending whistleblowing rights to judges would detrimentally impact the independence of the judiciary. On the contrary, Judge Gilham successfully argued that allowing whistleblowing protections would be a valuable constitutional safeguard and would ensure the protection of justice.

This momentous decision has potentially far-ranging consequences as it opens the gate for challenges to be made from individuals who do not qualify for whistleblowing protection because they are neither an employee nor a worker for example volunteers, non-executive directors and other office-holders.

Considering that the Conservative’s party’s long-standing commitment to scrapping the Human Rights Act 1998 has yet to come to fruition, this recent decision shows that there is increasing recognition that employment rights are founded in human rights and any future attempts by Parliament to reduce human rights protections could meet greater opposition.

Ruth Moffett is a Junior Associate at Clyde & Co