Employment Appeal Tribunal confirms that judges don't work for a living...

Caspar Glyn QC

....they do, however, faithfully and diligently discharge their office and can be, of course, in an employment relationship.

Like a London Bus rather than an Uber one worker status case follows another with the EAT’s decision in Gilham v MoJ. Ms Gilham sought whistleblower protections in her role as a district judge. Her appeal against the conclusion that she was not a worker was dismissed by President Simler.

All accepted that she was an office-holder.

The ET below concluded that she did not fall within s.230(3)(b) Employment Rights Act 1996 which provides that a worker is someone who works under

“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 of customer of any profession or business undertaking carried on by the individual…”.

The reason for the Tribunal’s decision was that there was no contract between the parties. In Ministry of Justice (formerly Department of Constitutional Affairs) v O’Brien [2013] ICR 499 the Supreme Court held that whilst Recorders do have an employment relationship that satisfies the Part-time Workers Regulations 2000 they did not go on and state that they had an employment relationship. The “employment relationship” finding was effectively based on European law on which the PTW Regs were founded.

In Gilham the key passage from the Tribunal’s judgment set out this set of propositions:

“I distil from these cases the following propositions, which seem to me to be equally applicable to statutory office-holders such as judges, although the nature of a statutory office will be material in assessing the relationship:

(a) the question of employment status cannot be answered simply by discerning whether a minister has an office or is in employment: the two are not mutually exclusive (Preston, paragraph 10, and Sharpe, paragraphs 67 and 68)

(b) there must be an exercise of contractual interpretation to decide whether, in all the circumstances, there is a contract between the parties;

(c) this will involve consideration of the manner of appointment and the way in which the office-holder carries out their duties;

(d) it is necessary to ask whether rights and duties arise under contract or are defined by the office held;

(e) in the context of statutory employment protection, arrangements (between a minister and a church) should not lightly be taken to have no legal effect (Percy, paragraph 26);

(f) if there was no express contract, there will not be any necessity to imply one (Preston, paragraph 12, Sharpe, paragraph 77): it is insufficient that the conduct relied on is no more consistent with an intention to contract than an intention not to contract.”

The Judge found that District Judges were appointed to an office defined by statute, there was no negotiation and could only be terminated by the Respondent on limited grounds of misconduct and incapacity.

The EAT rejected Ms Gilham’s submissions that as there was de facto offer, acceptance and mutuality of obligations that there had to be a contract. Rather it held that they too could be features of an office. The key for the EAT was to analyse the source of the legal obligations: namely under an agreed contract or the office imposing duties and conferring rights – in this case mainly under statute. No rights or obligations in the case of a District Judge arise from privately negotiated agreements. It rejected the submission that on the construction of these documents there was a contrasct.

Finally, the EAT rejected that the right to freedom of expression required under Article 10 of the convention required the court to extend the meaning of s.230(3)(b) to those in an employment relationship but who do not have a contract. This was because the section was clear and the sought for interpretation was inconsistent with the clear meaning of the statue and because s.43K has been carefully considered by Parliament so as to extend the scope of whistleblowing coverage. Further, a District Judge is given many protections under statutes as to judicial independence, tenure, pay and a statutory grievance procedure.

Analysis

This case turns very much, in my view, on the particular safeguards and protections that judges are guaranteed under statute. The courts act to protect whistleblowers jealously in my experience. However, a judge can only, apparently, be removed in certain limited circumstances and has many guarantees under statute including invoking a complaint system for grievances. Whilst it would be wrong to attempt to reverse fit the reasoning of both judgments given that both Tribunals moved carefully with persuasive reasoning it seems to me that the lack of any necessity to give a protected judge such protections was a powerful reason why, in the final analysis no such reasoning was given.

Finally, of course, the lack of an EU dimension in the domestic protections of whistleblowing meant that the Judge was not assisted by the O’Brien decision. As the ECJ held In the recent case of Fenoll v Centre d’aide par le travail “La Jouvene” C-316/13 [2016] IRLR 67 the ECJ extended the definition of worker for the purposes of the WTD. Mr Fenoll was a disabled person who frequented a work rehabilitation centre in France from 1996. He provided various services, was paid (albeit below the French minimum wage) and received paid annual leave. He went off sick and subsequently sought payment in regard to leave accrued before and during his period of sickness absence. The main issue was whether Mr Fenoll was a “worker” within the meaning of Art 7 WTD.

The ECJ held at [27] that the concept of “worker” has an autonomous meaning specific to EU law:

So any person who pursues real, genuine activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a "worker".

The tasks Mr Fenoll carried out were not created for his sole benefit; they had an economic value to the centre too. It would be for the national court to ascertain whether the services actually performed could be regarded as forming part of the normal labour market. This case potentially opens the door for individuals who fall outside the domestic s.230(3) ERA 1998 definition of worker to bring claims for working time rights derived from EU law.

I do think that the concept of Office Holder is anomalous in 2016. The reality is that the Judge is doing a paid piece of work, with judicial independence, subject to capability and misconduct procedures and with a grievance procedure. They are a worker aren’t they? Rather like a doctor who of course has clinical independence.

Again, I believe that the failure of employment law to deal effectively with this status issue, like the uncertainties over Uber, show the need to update our old law of office-holders, masters and servants. Over to you Mr Taylor.

Or, indeed, to my Cloisters colleagues Rachel Crasnow QC and Rachel Barrett who represented Ms Gilham.