Judges are entitled to whistleblowing protection


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The Supreme Court has held in Gilham v Ministry of Justice that judges do have protection as whistleblowers.

In 2010 DJ Gilham complained about the impact of cuts on the administration of justice, including the lack of appropriate and secure court room accommodation, the severe increase in workload and various administrative facilities.  She alleged that these amounted to protected disclosures as they tended to show a miscarriage of justice was likely, and/or that the health and safety of individuals had been, or was likely to be, endangered.  She claimed that she was subjected to a number of reprisals on the grounds of her whistleblowing, including being undermined and bullied by fellow judges and court staff, and brought a whistleblowing detriment claim in the Employment Tribunal.

The Employment Tribunal, the Employment Appeal Tribunal (EAT) and Court of Appeal all decided that she was not a worker for the purposes of the whistleblower provisions in the Employment Rights Act 1996 (ERA 1996).  However, the Supreme Court held that DJ Gilham should enjoy her right to freedom of expression as an office holder.  The Court agreed that DJ Gilham's right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR) had been interfered with.  She had been treated less favourably than others in an analogous situation, having been denied the protection available to other employees and workers who make protected disclosures.  The Court held that a reason for DJ Gilham's less favourable treatment was "status" (as a judge and office holder) under Article 14 of the ECHR (this provides that the enjoyment of convention rights shall be secured without discrimination on a number of different grounds including status).  As a result the Court held that the ERA 1996 should be read and given effect to in such a way so as to extend whistleblowing protection to the holders of judicial office.

Take note:  This is an important decision as it may mean that individuals who do not qualify for rights under the ERA 1996 because they do not have employee or worker status may be able to argue that they qualify for protection under the ECHR.  Employment status may no longer be a stumbling block when it comes to claiming certain rights, though this is subject to the proviso that an individual's "status" prohibits them from claiming a domestic right in contravention of Article 14 ECHR.

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