Applicability of whistle blower to the holder of any judicial office

A protected disclosure under Employment Rights Act applies to judicial officer and it shall not be subjected to any detriment for doing so and for complaints to an employment tribunal. These provisions, too, should be read and given effect so as to extend the protection given to whistle-blowers to the holders of judicial officer.

The Honourable Supreme Court of UK in the matter of Gilham (Appellant) vs. Ministry of Justice (Respondent) observed that “having regard to the strength of the interpretative obligation under section 3 of the e Employment Rights Act it would be possible to read section 230(3) down so that it extended to an ‘employment relationship’ of the kind found to exist in O’Brien. It does not seem that the definition of a worker by reference to the existence of a contract, so as to exclude a ‘mere’ office-holder, is a fundamental feature of the legislation.” Though it would not be difficult to include within limb (b) 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. The legislation contemplates disclosure to an employer or others responsible for the conduct in question, which in this case would be the leadership judges or the HMCTS or the Ministry of Justice, depending upon the nature of the conduct. It also prohibits both the employer and fellow employees from subjecting the whistle-blower to any detriment, which again would have to embrace fellow judges and those in a position to inflict such detriments. None of this would go against the grain of the legislation. When considering whether the disclosures had been made in the public interest, it would of course be relevant to consider whether there were other more appropriate ways of trying to resolve the situation. This would include the judicial grievance procedures policies (currently, policy no 1 relates to grievances between judicial office-holders and policy no 3 relates to grievances between judicial officer-holders and HMCTS staff); however, the appellant did invoke the grievance procedure and the investigating judge, Tomlinson LJ, commented that it was not a suitable means of dealing with the sort of systemic failures which were being alleged.

Bearing in mind, therefore, the parallel seen in Ghaidan vs Godin-Mendoza between section 3(1) and conforming interpretation in EU law, its strictures against attaching decisive importance to the precise adjustment needed to the language of the provisions, and the ease with which this court interpreted identical language to include judges as limb (b) workers in O’Brien, I can reach no other conclusion than that the Employment Rights Act should be read and given effect so as to extend its whistle-blowing protection to the holders of judicial office.

The relevant provisions of the Employment Rights Act extend to both England and Wales and Scotland (section 244) but not Northern Ireland. However, the equivalent provisions of the Employment Rights (Northern Ireland) Order 1996 (as amended by the Public Interest Disclosure (Northern Ireland) Order 1998) are to the same effect: article 3(3) defines “worker” in the same times as section 230(3); articles 67A, 67B, 67C define protected disclosures, qualifying disclosures and those to whom such disclosures may be made in the same way as in Part IVA of the 1996 Act; and articles 70B and 71(1A) provide that a maker of a protected disclosure shall not be subjected to any detriment for doing so and for complaints to an employment tribunal. Those provisions, too, should be read and given effect so as to extend the protection given to whistle-blowers to the holders of judicial office.

(Link : https://www.supremecourt.uk/cases/docs/uksc-2018-0014-judgment.pdf)

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