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28 Oct 2019

Do you need to be a worker to have whistle-blower protection?

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The Supreme Court recently considered this question in the case of Gilham v Ministry of Justice.

The facts

Ms Gilham is a district judge. During her tenure, she raised various concerns about cost-cutting reforms which she alleged amounted to protected disclosures. She argued that she was subjected to a number of detriments as a result of her complaints, including being bullied, ignored and undermined by fellow judges and court staff.

The MOJ argued that Ms Gilham was an officer holder, not a worker for the purpose of the whistle-blower protections. Prior to the Supreme Court hearing, the lower courts had all agreed that Ms Gilham was not classified as a worker under the Employment Rights Act 1996 (“ERA”) because there was no contractual relationship in place.

The decision

Was Ms Gilham a worker under the ERA and, if not, would not affording her whistle-blower protection be a breach of her rights under the ECHR?

While the Supreme Court agreed with the lower courts that judges are not workers under the ERA due to the absence of a contractual relationship, they unanimously agreed that Ms Gilham was, in fact, entitled to protection under whistle-blowing provisions. Denying her this protection would be incompatible with her rights under the ECHR.

Impact

It is expected that this decision will encourage the limits of whistle-blowing legislation to be tested on a much wider basis. In particular, it opens the door for other office holders to be able to bring claims on this basis. This is likely to include individuals without contracts of employment such as company directors, company secretaries, board members and appointments under the internal constitution of organisations. As such, it’s imperative that employers ensure they have a robust whistle-blowing policy in place that covers all individuals, not just those with whom they have a direct contractual relationship.

The decision also raises the question of whether the scope of protection could extend further, for example to secondees, job applicants or volunteers.

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