The traditional perception of a judicial appointment is that it brings with it generous terms of employment as well as very valuable pension arrangements on retirement.
While that might have been the case for many years, it is most certainly not the current position and senior judges have expressed concern about the impact on morale and recruitment. Judges at all levels are being required to deal with increased workloads, archaic IT and the challenges presented by a large increase in the number of unrepresented parties, as a result of severe restrictions on the availability of Legal Aid. If that were not enough much higher small claims limits, below which most legal costs are not recoverable, have priced many people out of being able to afford professional legal representation so cases are less well prepared and the guiding hand of a professional who might advise terms for settlement is absent.
While recent decisions seem to have applied a wide interpretation to what working terms are sufficient to establish employment rights as a worker (for example see last month’s Uber case), the opposite is the case as far as district judges are concerned. In Gilham v Ministry of Justice the Employment Appeal Tribunal (EAT) was asked to consider whether, in addition to being an office holder, District Judge Gilham was also a worker and therefore entitled to protection from whistleblowing.
I will not repeat what is required in law to be considered as a worker because I dealt with this last month when reporting the Uber case. In the employment tribunal the judge found that:
- District judges are appointed by the Queen on the recommendation of the Lord Chancellor, are paid a salary as determined by the Lord Chancellor (which may be increased but not reduced) and are assigned to areas (circuits) by the Lord Chief Justice.
- District judges hold office to the age of 70. They can only be removed for misbehaviour or inability to perform their duties (the latter only with the concurrence of the Lord Chief Justice).
- Their judicial role, functions and authority are prescribed by statute and rules of procedure made under statutory authority.
- Their terms of service are set out in memoranda issued by the Lord Chief Justice from time to time.
- The memoranda cover such matters as allocation of work, deployment, wellbeing and training ad general advice and direction.
The Lord Chief Justice therefore has responsibility for and control over the activities of district judges.
Ms Gilham was appointed as a salaried district judge in January 2006. She was assigned to the Crewe County Court and subsequently sat at Warrington County Court. The offer of appointment letter referred to “terms of service” but there was nothing to indicate the creation of a contract or which referred to employment.
The employment judge decided that in this case there was no intention to create a contractual relationship. Further, there was no element of negotiation in the terms of appointment and remuneration and the relationship between the parties could only be terminated by the Ministry in limited circumstances for incapacity or misconduct.
On appeal it was submitted that, had the correct test been applied, based on offer and acceptance, consideration on both sides, an intention to create legal relations and mutuality of obligations, Judge Gilham would properly have been identified as a worker within the meaning set out in the legislation. Mrs Justice Simler (President of the EAT), disagreed. the identified concepts could be features of a position held by an office holder as well as a worker so they were not determinative only of the latter. It was accepted that there was an intention to create legal relations but, without more, that was not enough. Although the details set out in memoranda from the Lord Chief Justice might be seen as similar to employment terms that did not in itself make them such. There was nothing to suggest that the parties intended to enter into an employment contract.
Having excluded the possibility of an express contract Mrs Justice Simler went on to consider the possibility that there was an implied contract. Similarly, she found that there was no scope from an analysis of the relationship between the parties to infer the existence of an implied contract.
District Judge Gilham needed to be recognised as a worker in order to have the right to pursue a whistleblowing claim. Having failed to do so there was also consideration of whether the right could be established on a different basis: freedom of expression under Article 10 of the European Convention on Human Rights. This approach was similarly rejected because a fundamental feature of the whistleblowing right is that it is available to workers (and therefore did not extend to the District Judge).
Accordingly the appeal was dismissed.
I am bound to observe that this judgment does not sit comfortably with the current willingness to construe relationships in such a way as establish service providers as workers, with corresponding rights. There is an element of asserting that because a relationship is seen as one thing then it cannot be something else (even though this is denied in the judgment itself). In any event the District Judge’s allegations that she was overworked and bullied and suffered a nervous breakdown because of her working conditions will not now be heard as claims of discrimination and whistleblowing (subject of course to any further appeal).
So spare a thought for the embattled judiciary and not just those Supreme Court judges who are currently being castigated by the less intelligent end of the British media for no more than doing their job.