Gilham v Ministry of Justice: A New Chapter in Employment Protection?
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.
ClaireGilham is a district judge sitting in Warrington County Court. She raised anumber of complaints regarding the impact of cuts on the administration ofjustice which she alleges amount to protected disclosures in that they tendedto show a miscarriage of justice was likely. She also alleges that she wassubject to a number of reprisals on the grounds of her whistle-blowing.
Themerits of that complaint are yet to be determined because the ET, EAT and Courtof Appeal concluded that judicial office-holders are not workers as defined bys230(3)(b) ERA 1996. The Supreme Court concurred with that decision: judges donot work under any form of contract and nor are they in Crown employment asdefined by s191 ERA 1996.
Afurther and fundamental question arose, however, as to whether the failure toconfer whistleblowing protection amounts to an infringement of Conventionrights. Before the ET and EAT it had been argued that this absence ofprotection contravened the Article 10 right to freedom from expression. Thiswas rejected on the grounds that judges enjoyed additional protection in theguarantees of tenure and salary.
Itwas first argued by Protect before the Court of Appeal that this absence ofprotection engaged a further Convention right, namely Article 14 which prohibitsdiscrimination in the enjoyment of all Convention rights – including the rightto freedom of expression – on suspect grounds including “any other status.” TheUK had chosen to provide additional protection by allowing workers to pursuecomplaints before the ET and depriving those who work other than under acontract of that right was incapable of justification. The “other status” wassaid to be judges or office-holders: in line with Strasbourg authority anoccupational classification is capable of being a “status.”
Whilstthe Court of Appeal rejected this analysis, the Supreme Court unanimouslyupheld the Article 14 challenge. There may have also been a breach of Article10 but this was not required. The Appellant was denied protection from pursuingcompensation for injury to feelings and from pursuing a detriment complaint. Inthe sole judgment of the Court Baroness Hale accepted that an occupationalclassification was “clearly capable” of amounting to an Article 14 status: itwas the office-holder classification which removed the Appellant and manyothers from the scope of s230(3) ERA 1996.
Thisdeprivation of rights fell to be justified by reference to a proportionalitycase. There was no evidence that Parliament had even applied its mind towhether protection conferred. Still less could a legitimate aim be identified:conversely the protection of judges would enhance their independence.
Itfell to the Supreme Court to remedy the unjustified contravention of Article14. In its view there was no need for a declaration of incompatibility since apurposive construction would not “go against the grain” of the legislation.
Thesuggested construction was to include within “limb (b) workers “an individualwho works or worked by virtue of appointment to an office whereby the officeholder undertakes to do or perform personally any work or services otherwisethan for persons who are clients or customers of a profession or businesscarried on by the office holder.” This construction would not only cover judgesbut other office-holders including the clergy and statutory directors.
Thisis a judgment with wide ramifications. It is the first domestic decision on thepositive impact of Article 14 on employment rights and has come from the mostauthoritative source. The murmurs of Article 14 found in cases such as Vining v London Borough of Wandsworth [2014]ICR 834 have reached a resounding pitch. In the context of Brexit and theuncertain future of EU law, the contribution of the Convention to employmentlaw has been given a welcome boost. Whistleblowing protection has beenconferred potentially on many thousands of people hitherto beyond its scope. Itwill surely not be long before a looser “other status” is advanced to expandthe scope of whistleblowing protection still further to include those who arenot office-holders but nonetheless “workers without contracts.”
Furtheronce 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 Article8, 11 and Article 1 Protocol 1 ECHR respectively. Why, it might be said, shouldthose in employment relationships other than pursuant to a contract be deprivedof 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 [2019] 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.