Workers in the UK are protected from suffering a detriment where they have made a protected disclosure under the Employment Rights Act 1996 (ERA 1996). To be protected under section 47B ERA 1996 the individual must be a worker as defined by s203(3) of that Act.  A recent decision of the Supreme Court considered whether the right should be extended to other office holders, in this case a District Judge.

The District Judge is an office holder and as such does not fall within the definition of worker. She made various disclosures regarding the justice system and claimed that she was subjected to detriments on the grounds of her whistleblowing.   The employment tribunal rejected her claim on the basis that she was not a worker and therefore not entitled to protection under the ERA 1996.  The EAT upheld the employment tribunals decision, holding that the terms of the judges’ appointment did not fall within the definition in s203(3)(b) … “any other contract whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.”

The EAT also rejected the argument that she should have protection under her right to freedom of expression set out in Art 10 European Convention of Human Rights (ECHR). It held that there were adequate safeguards to protect the freedom of speech of judges. The Court of Appeal agreed.

The Supreme Court however allowed the judges appeal.

On considering whether the position of the judge was a worker, the court looked at whether the parties had intended to enter into a contractual relationship so that she would fall within s203(3)(b). The manner of the appointment was by reason of a statutory relationship rather than a matter of choice or negotiation.  All factors pointed against the existence of a contractual relationship and therefore she did not strictly fall within the definition of worker.

The District Judge’s other claim was in relation to her rights under the ECHR. She argued at the Supreme Court that not only did the failure to protect her violate her rights under Article 10 ECHR, but that it was also a violation of her right under Article 14 (read with Article 10) in that she had been subjected to discrimination in relation to the exercise of her rights under the convention.  The Supreme Court held that an occupational classification was a “status” and as such could amount to discrimination and that, as no legitimate aim had been put forward, it was not possible to determine whether the exclusion of judges from the protection is a proportionate means of achieving that aim.  Therefore the court held that the exclusion of judges from the whistle-blowing protection of ERA1996 is in breach of their rights under article 14.  The court should therefore interpret the legislation in a way that is compatible with the Convention rights and so the ERA 1996 should be read and given effect so as to extend its whistle-blowing protection to the holders of judicial office.  The case has been remitted to the Employment Tribunal to consider the merits.

This decision has therefore opened the gate for other individuals who do not qualify for protections under the ERA 1996, such as other office holders, non-executive directors and volunteers. They would however, have to show that a convention right had been interfered with and that the ERA should be read to protect their rights.

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