Chris Milsom, who acted as junior counsel for the successful intervener Protect considers a legal milestone which puts human rights at the heart of employment protection.
The Supreme Court has delivered its decision in the landmark case of Gilham v Ministry of Justice. In conferring the right to pursue whistleblowing complaints on judges – and for that matter all office-holders – it has opened a new frontier for the role of the European Convention of Human Rights in employment disputes.
Claire Gilham is a district judge sitting in Warrington County Court. She raised a number of complaints regarding the impact of cuts on the administration of justice which she alleges amount to protected disclosures in that they tended to show a miscarriage of justice was likely. She also alleges that she was subject to a number of reprisals on the grounds of her whistle-blowing.
The merits of that complaint are yet to be determined because the ET, EAT and Court of Appeal concluded that judicial office-holders are not workers as defined by s230(3)(b) ERA 1996. The Supreme Court concurred with that decision: judges do not work under any form of contract and nor are they in Crown employment as defined by s191 ERA 1996.
A further and fundamental question arose, however, as to whether the failure to confer whistleblowing protection amounts to an infringement of Convention rights. Before the ET and EAT it had been argued that this absence of protection contravened the Article 10 right to freedom from expression. This was rejected on the grounds that judges enjoyed additional protection in the guarantees of tenure and salary.
It was first argued by Protect before the Court of Appeal that this absence of protection engaged a further Convention right, namely Article 14 which prohibits discrimination in the enjoyment of all Convention rights – including the right to freedom of expression – on suspect grounds including “any other status.” The UK had chosen to provide additional protection by allowing workers to pursue complaints before the ET and depriving those who work other than under a contract of that right was incapable of justification. The “other status” was said to be judges or office-holders: in line with Strasbourg authority an occupational classification is capable of being a “status.”
Whilst the Court of Appeal rejected this analysis, the Supreme Court unanimously upheld the Article 14 challenge. There may have also been a breach of Article 10 but this was not required. The Appellant was denied protection from pursuing compensation for injury to feelings and from pursuing a detriment complaint. In the sole judgment of the Court Baroness Hale accepted that an occupational classification was “clearly capable” of amounting to an Article 14 status: it was the office-holder classification which removed the Appellant and many others from the scope of s230(3) ERA 1996.
This deprivation of rights fell to be justified by reference to a proportionality case. There was no evidence that Parliament had even applied its mind to whether protection conferred. Still less could a legitimate aim be identified: conversely the protection of judges would enhance their independence.
It fell to the Supreme Court to remedy the unjustified contravention of Article 14. In its view there was no need for a declaration of incompatibility since a purposive construction would not “go against the grain” of the legislation.
The suggested construction was to include within “limb (b) workers “an individual who works or worked by virtue of appointment to an office whereby the office holder undertakes to do or perform personally any work or services otherwise than for persons who are clients or customers of a profession or business carried on by the office holder.” This construction would not only cover judges but other office-holders including the clergy and statutory directors.
This is a judgment with wide ramifications. It is the first domestic decision on the positive impact of Article 14 on employment rights and has come from the most authoritative source. The murmurs of Article 14 found in cases such as Vining v London Borough of Wandsworth  ICR 834 have reached a resounding pitch. In the context of Brexit and the uncertain future of EU law, the contribution of the Convention to employment law has been given a welcome boost. Whistleblowing protection has been conferred potentially on many thousands of people hitherto beyond its scope. It will surely not be long before a looser “other status” is advanced to expand the scope of whistleblowing protection still further to include those who are not office-holders but nonetheless “workers without contracts.”
Further once occupational classification is identified as a viable “other status,” Article 14 has untapped potential far beyond whistleblowing. Unfair dismissal, trade union rights and wages have at times been deemed as within the scope of Article 8, 11 and Article 1 Protocol 1 ECHR respectively. Why, it might be said, should those in employment relationships other than pursuant to a contract be deprived of exercising their other Convention rights before the Employment Tribunal?
It will only be a matter of time before a body of Article 14 case-law scrutinises the wide array of scenarios in which the existence of a contract serves as a pre-requite for access to protection. On each occasion an ET will be reminded of the unanimous decision of the Supreme Court in Gilham that it does not go against the grain of the legislation to extend protection beyond “limb (b)” workers. The EAT’s rejection of an application by an association of foster carers for trade union recognition in NUPFC v Certification Officer  IRLR 860 (in which Rachel Crasnow QC and Rachel Barrett acted for the union) already looks vulnerable. The recognition that employment protection is founded in human rights and should be shaped accordingly has entered a new chapter.