The Supreme Court of United Kingdom has held that the whistle-blowing protection envisaged under Employment Rights Act should be extended to the holders of judicial office.
Lady Hale, delivered the unanimous judgment holding that the exclusion of judges from the whistle-blowing protection in Part IVA of the Employment Rights Act is in breach of their rights under article 14 read with article 10 of the European Convention on Human Rights.
The court was considering the case of Gilham, a district judge, in which the issue considered was whether a district judge qualifies as a "worker" or a "person in Crown employment" for the purpose of the protection given to whistle-blowers under Part IVA of the Employment Rights Act 1996.
Gilham had raised a complaint before her higher authorities sharing concerns relating to the cuts, in particular about the lack of appropriate and secure court room accommodation, the severely increased workload placed upon the district judges, and administrative failures. She claimed before the Employment Tribunal that she was subjected to a number of detriments as a result of her complaints: a significant delay in investigating her grievance; being seriously bullied, ignored and undermined by her fellow judges and court staff; being informed that her workload and concerns were simply a "personal working style choice"; and inadequate steps to support her in returning to work. But the Tribunal held that she does not qualify as a "worker" or a "person in Crown employment" for the purpose of the protection given to whistle-blowers under Part IVA of the Employment Rights Act.
While holding that the excluding judges from whistle blowing protection, the court observed:
It has not been explained, for example, how denying the judiciary this protection could enhance judicial independence. Of course, members of the judiciary must take care, in making any public pronouncements, to guard against being seen to descend into the political arena. But responsible public interest disclosures of the sort which are protected under Part IVA do not run that risk. Indeed, the object of the protection was to give workers the confidence to raise malpractice within their organisation rather than placing them in a position where they feel driven to raise concerns externally. It is just as important that members of the judiciary have that confidence. They are just as vulnerable to certain types of detriment as are others in the workplace. To give the judiciary such protection might be thought to enhance their independence by reducing the risk that they might be tempted to "go public" with their concerns, because of the fear that there was no other avenue available to them, and thus unwillingly be drawn into what might be seen as a political debate.
Addressing her contention that the failure to extend the whistle-blowing protection to judicial officers was a violation of her right to freedom of expression under article 10 of the ECHR, the court said:
It is indeed possible to see that imposing certain detriments upon her as a result of her public interest disclosures would be an interference with her freedom of expression. It is not enough to say that judges are well protected against dismissal and other disciplinary action if they speak their minds. They are not so well protected against the sort of detriments which are complained about in this case - bullying, victimisation and failure to take seriously the complaints which she was making
The court then allowed the appeal and remitted the case to the Employment Tribunal on the basis that a Judge is entitled to claim whistle blowing protection.
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