The Employment Appeal Tribunal has just given an important judgement on whistleblowing law in the UK. It decided that a judge (Judge Claire Gilham) was not an employee, but a “post holder”, which is a different concept in employment law. As she did not have a contract of employment with the Ministry of Justice she was not a “worker”. Therefore judges are not protected by whistleblowing laws.
District Judge Claire Gilham had tried to show that she was protected as a whistleblower, meaning she needed to show she was a “worker” as defined by the Employment Rights Act 1996.
She went public about the way she had been bullied, harassed and overworked during her tenure to Warrington County Court in 2009. This had led to her suffering a nervous breakdown.
The case had previously been dismissed by an employment tribunal hearing, which found that she was not a “worker”. This was upheld by the Employment Appeal Tribunal recently. It went on to state that when Judge Gilham was appointed to the bench and the correspondence letters she had with the then lord chancellor clearly did not amount to a contract of employment between herself and the Ministry of Justice.
The EAT went on to state that Judge Gilham’s right to freedom of expression under the European Convention of Human Rights was merely a fudged attempt to add an extra category of a worker for someone who did not need to have a contractual relationship but who could still benefit from the current legislation on whistleblowing.
This case is exactly the sort of territory occupied by the recent Uber and Deliveroo cases – when is someone an “employee” or a “worker”?
These cases show that there are categories of staff (such as self-employed) who may think that they are “workers” for the purpose of whistleblowing legislation but who are not afforded protection.
By Sanjeev Kumar