employment lawSupreme Courtwhistleblowing

District Judge Claire Gilham used to sit at the Warrington County Court. In 2010 she became very concerned about her working conditions. The court rooms were not secure, her workload had increased enormously and there were frequent administrative failures following substantial cuts to the Ministry of Justice budget. These issues will be all too familiar to regular court users and most would agree that the conditions have deteriorated significantly in subsequent years.

Judge Gilham complained, but felt that she was bullied, ignored and undermined. In particular she was told that her workload and concerns were simply “a personal working style choice”. She suffered from mental health problems and was signed off with stress from the end of January 2013.

In 2015 she brought a whistleblowing claim in the employment tribunal. However, an issue was raised about whether or not she was classified as “worker”, within the meaning set out in the Employment Rights Act 1996. She was found not to be a worker and so her claim failed. The outcome was the same on appeal to the Employment Appeal Tribunal and the Court of Appeal.

However, in a landmark decision delivered on 16 October, the Supreme Court overturned the decisions of the lower courts in holding that Judge Gilham was a worker and therefore entitled to whistleblowing protection. As a result her case will now be considered by an employment tribunal. The lead judgment was delivered by the outgoing President of the Supreme Court, Lady Hale. She stated:

I can reach no other conclusion than that the Employment Rights Act should be read and given effect so as to extend its whistleblowing protection to the holders of judicial office.

Speaking outside the Court, Judge Gilham said that she was “delighted” with outcome “after seven long years”, saying:

I was surprised to discover that I was excluded from the protections afforded other whistleblowers.

As the Supreme Court has now found, there was no justification for that exclusion, and the Supreme Court has now put that right.

Judges are just as in need of protection when whistleblowing as others. The point of whistleblowing protection is to give confidence that it is safe to raise malpractice within any organisation.

Organisations that cannot hear such warnings endanger the services they are tasked with providing

A Ministry of Justice spokesman confirmed that the Government accepts the judgment and will now consider how to implement it.

Although the point of establishing that an office holder such as a judge is entitled to whistleblowing protection may seem fairly narrow, the point is that the judgment makes clear that the principle is that all classes of workers are entitled to protection when raising whistleblowing concerns. Logically, that extends to short-term workers, agency workers, zero hours workers, indeed all bar the genuinely self-employed, and how long might it be before they are included as well. The message is clear, take all whistleblowing claims very seriously and assume that protection is available to the whistleblower, unless there are very clear reasons indicating the contrary.