‍Gilham v Ministry of Justice: Cutting a Gordian knot

Frederick Cheng

Gilham v Ministry of Justice: Cutting a Gordian knot

Frederick Cheng

Subject: Labour, Human Rights

Keywords: Gilham v Ministry of Justice, Worker, Whistle-blowing, Human Rights

Cases:

Gilham v Ministry of Justice [2019] UKSC 44

National Union of Professional Foster Carers v Certification Officer and ors [2019] IRLR 860


Introduction

How can Labour law grant whistle-blowing rights to appointed office holders if they lack the contractual relationship required to be considered a “worker” under s230(3)(b) of the Employment Rights Act 1996 (“ERA”)? At one point, the answer was simple: it cannot. However, in Gilham v Ministry of Justice,1 the Supreme Court unanimously held that the ERA’s failure to extend whistle-blowing rights to a district judge was incompatible with her right under Article 14 of the European Convention of Human rights (“ECHR”) not to be discriminated against on the basis of her occupational status. It then extended said protections via its interpretative obligation under s3(1) of the Human Rights Act 1998 (“HRA”).


Gilham has its merits: it creates an avenue for unequal working relationships to be corrected without having to find a contract and signals that human rights are a forefront concern in Labour law. More fundamentally, Gilham raises questions on the extent to which an Art. 14 claim may be used to extend protections that are contingent on occupational status to groups of people who fall outside the statutory definition of said statuses.  


Facts

The appellant was a district judge appointed by the Lord Chancellor. The letter that offered her appointment contained terms specifying her duration of appointment, pension, and the terms as to (inter alia) sick pay, maternity leave, the prohibition of legal practice and relations with the press and media.2


After 2010, the appellant raised a number of concerns over the impact of major budgetary cuts to local leadership judges, senior court managers and eventually filed a formal grievance.3 She claimed that her complaints were not only poorly handled, but caused her to be subjected to bullying and victimisation by her fellow judges and court staff.4


On appeal to the Supreme Court, the appellant argued:  

  1. That she was entitled to whistle-blowing protection because she was a worker as defined by s230(3)(b) of the ERA5 (“limb-(b) worker”) or is in “Crown employment” under s191 ERA.
  2. If her arguments under (1) failed, that her exclusion from whistle-blowing protection breached her right not to be discriminated against (Art. 14 ECHR) in her enjoyment of her right to freedom of speech (Art. 10 ECHR).


The Judgment

Judges are neither workers nor crown employees

A limb-(b) worker has two distinguishable features: (1) the existence of a contractual relationship and (2) personal performance of work or services for a recipient who is neither the worker’s client or customer. While the Court accepted that district judges satisfied (2),6 they found that several factors pointed against the contractual relationship. First, the essential components of the relationship (salary, pensions and terms of appointment) were laid down in statute; they were not matters of choice or negotiation between the parties.7 Second, there was difficulty identifying the appellant’s employer.8 Finally, the separation of powers doctrine holds that the judiciary is separate and independent from the government. This points against the inference that a Minister of the Crown (the Lord Chancellor) would have intended to enter into a contractual relationship with a district judge, a member of the judiciary.9


A person is in crown employment for the purposes of s191(3) ERA where he is employed under or for (1) the purposes of a government department or (2) an officer or body exercising Crown functions pursuant to statute.10  For the same reasons underlying the conclusion that a district judge was not a limb-(b) worker, the Court accordingly found that a district judge satisfied neither limb: they are not employed for the purposes of a government ministry (viz. the Ministry of Justice) nor can they be considered civil servants or such equivalents. Rather, they work for the administration of justice in accordance with their oaths of office.11


Not extending whistle-blowing protection breaches Art. 14 ECHR

Since one must be a ‘worker’ to enjoy a right not to be subjected to any detriment on the ground that one has made a protected disclosure12, the Court found that under the ERA 1996, whistle-blowing protections did not extend to judicial or non-contractual office holders. However, this was ultimately incompatible with her right to freedom from discrimination under Art. 14 of the ECHR, read with Art. 10.


Art. 14 reads:  

“The enjoyment of the rights and freedoms set forth in the [ECHR] shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”


For a measure to be incompatible with the appellant’s Art. 14 rights, four elements are required:113

  1. The existence of a Convention right;
  2. Less favourable treatment than others in an analogous situation
  3. on one of the grounds listed in Art. 14 or some “other status” which
  4. either lacked a legitimate aim was a disproportionate means of achieving a legitimate aim.


To this end, the Court held that:

  1. Whistle-blowing fell within the ambit of the right to freedom of expression protected by Art. 10.14
  2. Because the appellant was denied protection from “any detriment” which was available to other employees and workers who made responsible public disclosures within Part IVA of the ERA, she had been subject to less favourable treatment afforded to employees and limb-(b) workers.15
  3. The appellant’s occupational classification was capable of being an “other status” within the meaning of Art. 14.16  
  4. Excluding judges from whistle-blowing protections was disproportionate.17 There was no legitimate aim for the exclusion18 or any evidence that Parliament or the executive had turned their minds to excluding the judiciary from the protection of Part IVA.19


The finding of incompatibility meant that the Court was under an obligation under s3 of the Human Rights Act 1998 (“HRA”) to interpret the definition of a limb (b) worker to include “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.”2


Comment

Cutting a Gordian Knot

It is a trite observation that Labour law seeks to correct the imbalances of power that exist between hirer and worker through statutory intervention. Whistle-blowing rights are one such example: they enable workers to disclose information about actual or apprehended wrongdoing without fear of being subject to detriment21 or dismissal.22 The problem however, is that such protections are heavily dependent on how the employment relationship is classed. In this sense, the first part of the Gilham judgment was a straightforward application of the law to the facts: the appellant was not entitled to whistle-blowing protection under the ERA because she did not fit the definition of a worker. Secondly, while the law has been able to repel employers’ attempts to ‘re-class’ working relationships by disregarding sham terms23 and agreements to waive employee status,24 such protections are contingent on the existence of a contractual relationship. Here, the second part of the Gilham judgment cuts the Gordian knot with respect to whistle-blowing protection, looking beyond the lack of a contract (which is essential to the finding of ‘worker’ status under the ERA) towards the appellant’s Art. 14 rights to accord the rights that were originally denied to her under the ERA.


This is arguably a decision with wide ramifications. The Supreme Court’s re-interpretation of a ‘worker’ under s230(3)(b) ERA to include appointed office holders has partially liberated the class from the requirement of a contractual relationship, enabling people like company directors, board members and individuals whose appointments are governed by statute to be caught within its ambit. This means that whistle-blowing protections have now been conferred on thousands of new potential people. Additionally, this judgment is unlikely to be affected by Brexit: unlike the Charter of Fundamental Rights, the ECHR is an international treaty stemming from the Council of Europe imported into domestic law via the HRA; it is not European Union law.25


Using the ECHR to extend whistle-blowing protection to the applicant also fits well with Labour law’s increasing focus on human rights. Several years after the HRA came into force, X v Y26 provided guidance on when dismissals that interfered with an employee’s Convention rights could be unfair. More recently, the finding that employment tribunal fees were unconstitutional in UNISON27 is in part, due to the fact that it breached the individual’s right to a fair and public hearing (Art. 6(1) ECHR). Is the Court’s recognition of the role of human rights in Labour law meritorious? I would say yes. First, recognising human rights in Labour law has an instrumental value: it is a means of delivering social good. It enables people who have been affected by the decisions of a hirer to nonetheless enjoy the rights and interests that have been recognised by contemporary political culture. In the context of Gilham, whistle-blowing protection encourages individuals to voice their concerns without fear of reprisal and avails them the chance to expose negative practices that would have otherwise be left unpublicised. This not only provides the employer with the opportunity to rectify practices that are toxic to its enterprise, but compels them to be accountable for their subsequent acts or omissions. Allowing human rights to influence the application of Labour Law also carries intrinsic dignitarian value independent of its instrumentalism: it not only acknowledges an individual as being more than just what he can contribute to the enterprise but also expresses liberal democracy’s commitment to concern and respect for all. Whistle-blowing in this sense gratifies the right to enter into a discourse with the hirer by enabling those in work to respond to problematic treatment and potentially be consulted about what is to be done.


Gilham beyond whistle-blowing: is it sharp enough?

It was not just the use of the ECHR in Gilham that was interesting but how it was used. In particular, the Court’s finding that discrimination based on occupational classification fell within the ambit of Art. 14 has the potential to birth a whole new body of case law. It would not be surprising if in a subsequent judgment, the Court extends whistle-blowing rights to include non-office holders but are nonetheless akin to “workers without contracts”.


More importantly, Gilham’s application of Art. 14 could be adopted in subsequent cases to grant protections that would have otherwise been confined to individuals satisfying the statutory definition of a “worker” or an “employee”. This highlights the vast capacity for Art. 14 to extend employee or worker protections to other types of working relationships if they fall under the ambit of another Convention right. In this vein, trade union rights and unfair dismissal has been deemed in certain situations, to fall under Art. 1128 and Art. 829 respectively. Whether the Court can tap on this potential to actually grant these rights to people who are not workers or employees3 however, is another question entirely.


Take the decision in National Union of Professional Foster Carers v Certification Officer and ors31 (“NUPFC”) which upheld a refusal to register a trade union representing the interests of foster carers because they were not “workers” within the meaning of s296(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”). On one hand, one could argue that the decision now appears extremely vulnerable32 in Gilham’s wake since the EAT in NUPFC rejected the argument that not having or working under a contract qualified as “other status” within the meaning of Art. 14.33 On the other, an Art. 14 challenge can be defeated by the existence of a reasonable justification viz. that the discrimination is a proportionate means of pursuing a legitimate aim.34 In this vein, it seems more convincing to argue that such discrimination is not disproportionate since refusing registration does not prevent foster carers from forming trade associations and joining registered trade unions that “comprise mainly of workers”.35 Indeed, a similar logic ran through the Unite the Union36 case, which held that a government measure that weakened a trade union’s ability to collectively bargain did not interfere with its Art. 11 rights since it did not restrict them from entering into collective agreements37 Trade union freedoms have also historically been characterised as involving sensitive social and political issues,38 which may in turn justify giving states a wide margin of appreciation over how to secure their freedoms. This in turn, may compel the courts to engage in lower intensity scrutiny when assessing the compatibility of the Certification Officer’s decision with NUPFC’s Art. 14 rights.


Conclusion

Gilham ultimately reminds us that employment protection is rooted in human rights and should be shaped accordingly. However, we would do well to remember that in developing Labour Law and applying the ECHR, courts are essentially trying draw a map of shifting sands. Not all protections are made equal: some require the balancing of interests that is best left to government policy while others are embedded in statutory provisions that are not amenable to an ECHR-compatible reading. Thus, while the unanimous decision in Gilham may enable future Courts to scrutinise the wide array of scenarios where an occupational status is required to enjoy a specific right, it should not be assumed Courts will be ready to expand the scope of protection in every situation.


Footnotes


1. [2019] UKSC 44

2. Ibid, [4]

3. Ibid, [5]

4. Ibid, [7]

5. Viz. an individual who has entered into or works under (or where the employment has ceased, worked 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 or customer of any profession or business undertaking carried on by the individual.”

6.  Gilham (n 1), [12]

7. Ibid, [18]

8. Ibid, [19]

9. Ibid, [20]

10. Ibid, [24]

11, Ibid

12. See S47B ERA

13. Gilham (n 1) [28]

14. Gilham (n 1) [29]

15. Ibid, [30]

16. Ibid, [32]

17. Ibid, [33]

18. Ibid, [36]

19. Ibid, [35]

20. Ibid, [43]

21. S47B ERA 1996

22. S103A ERA 1996

23.  Autoclenz v Belcher [2011] UKSC 41

24. Ferguson v John Dawson & Partners (Contractors) Ltd [1976] 1 WLR 1213, Megaw LJ

25. https://www.equalityhumanrights.com/en/our-human-rights-work/what-does-brexit-mean-equality-and-human-rights-uk

26. [2004] IRLR 625

27. R (UNISON) v Lord Chancellor [2017] UKSC 51

28.  Wilson, National Union of Journalists and ors v UK [2002] IRLR 568, Demir and Baykhara v Turkey [2009] IRLR 766

29. Q v Secretary of State for Justice [2020] 1 WLUK 71

30. Only employees have a general right to claim in unfair dismissal (s95(1) ERA). While dismissals can be detriments for the purposes of s146 TULRCA, protection from dismissal only arises if it is done for the solely or mainly due to one of the reasons listed in s152 TULRCA.  

31. [2019] IRLR 860

32. https://www.cloisters.com/gilham-v-ministry-of-justice-a-new-chapter-in-employment-protection/

33. NUPFC (n 25) [136]

34. Gilham (n 1), [28]

35. s1(a) Trade Union and Labour Relations (Consolidation) Act 1992

36.Unite the Union v UK [2017] IRLR 438

37.  Ibid, [59]

38. Wilson (n 25) [44]