Gilham v Ministry of Justice, Court of Appeal - Civil Division, December 21, 2017, [2017] EWCA Civ 2220

Resolution Date:December 21, 2017
Issuing Organization:Civil Division
Actores:Gilham v Ministry of Justice
 
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Neutral Citation Number: [2017] EWCA Civ 2220

Case No: A2/2016/4359

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM the Employment Appeal Tribunal

Mrs Justice Simler (President)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21/12/2017

Before:

LADY JUSTICE GLOSTER

(Vice President of the Court of Appeal (Civil Division))

LORD JUSTICE UNDERHILL

and

LORD JUSTICE SINGH

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Between:

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Ms Rachel Crasnow QC and Ms Rachel Barrett (instructed by Bindmans LLP) for the Appellant

Mr Ben Collins QC and Mr Robert Moretto (instructed by the Treasury Solicitor) for the Respondent

Mr Daniel Stilitz QC and Mr Christopher Milsom (Instructed by Leigh Day for the Intervener, Public Concern at Work)

Hearing dates: 18 and 19 October 2017

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Lord Justice Underhill :

INTRODUCTION

  1. This is the judgment of the Court, to which all its members have contributed. The Appellant is a district judge. On 27 February 2015 she brought proceedings in the Employment Tribunal against the Ministry of Justice under Part IVA of the Employment Rights Act 1996 claiming that she had been subjected to various detriments contrary to section 47B of the Act - that is, for whistleblowing (or, more formally, making protected disclosures). The detail of the disclosures is irrelevant for the purpose of this appeal: very broadly, they concerned what were said to be poor and unsafe working conditions and an excessive workload in the courts where the Appellant worked, affecting both herself and the other judges working there. She also brought a claim for disability discrimination.

  2. A whistleblowing claim may be brought only by a ``worker'' (see section 47B (1)). ``Worker'' is defined by section 230 (3) of the 1996 Act as follows:

    ``In this Act `worker' (except in the phrases `shop worker' and `betting worker') means an individual who has entered into or works under (or, where the employment has ceased, worked under) --

    (a) a contract of employment, or

    (b) 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;

    and any reference to a worker's contract shall be construed accordingly.''

    ``Contract of employment'' is defined by sub-section (2) as ``a contract of service or apprenticeship''.

  3. By a Judgment with Reasons sent to the parties on 26 October 2015 an Employment Tribunal in Manchester (Regional Employment Judge Robertson sitting alone) dismissed the Appellant's complaint under Part IVA on the basis that she was not a worker within the meaning of the 1996 Act, because she was an office-holder and not a party to a contract falling under either limb of section 230 (3). That conclusion did not affect the Appellant's disability discrimination claim because it was established in the O'Brien litigation - see paras. 48-52 below - that for the purpose of EU law, and thus of domestic legislation implementing it, a judge falls within the protection of the discrimination legislation if he or she is in an ``employment relationship'', which need not be contractual; but the whistleblower legislation is purely domestic and does not derive from any EU Directive.

  4. The Appellant appealed to the Employment Appeal Tribunal against the dismissal of her whistleblowing claim. By a judgment handed down on 31 October 2016 Simler P dismissed the appeal. This is an appeal against that decision.

  5. The Appellant has been represented before us by Ms Rachel Crasnow QC, leading Ms Rachel Barrett, and the Respondent by Mr Ben Collins QC and Mr Robert Moretto. Both the leaders appeared both in the ET and the EAT and Ms Barrett in the EAT. The charity Public Concern at Work (``PCAW'') was given permission to intervene in this Court and was represented by Mr Daniel Stilitz QC, leading Mr Christopher Milsom.

  6. In the ET and the EAT the Appellant's primary case was that she fell within the terms of section 230 (3) as construed on ordinary domestic law principles, essentially because she did indeed work under a contract with the Ministry of Justice or the Lord Chancellor It seems to us that any contract would, as a matter of strict form, be with the Lord Chancellor rather than the Department. It should also be noted that the relevant statutory references in this field are to ``the Lord Chancellor'' rather than ``the Secretary of State'', so although the Lord Chancellor nowadays is also Secretary of State for Justice it is correct to refer to him in this context under the former title. . However, she had an alternative case that even if that were not so the Court should apply section 3 of the Human Rights Act 1998 to achieve a construction of section 230 (3) under which she could be treated as a worker in order to avoid a breach of her rights under article 10 of the European Convention on Human Rights. In this Court PCAW sought permission to advance a further argument, based on article 14 of the Convention. That application was supported by the Appellant, who sought permission to amend her grounds of appeal to incorporate that argument. The Respondent opposed those applications, but we decided that the point should be allowed to be taken and granted the necessary permission to amend: our reasons appear at para. 92 below. We will address the domestic law, article 10 and article 14 issues in turn.

    A. THE DOMESTIC LAW ISSUE

    THE ISSUE

  7. It is common ground that as a district judge the Appellant is an office-holder. But it is also common ground that that is not inherently inconsistent with her working under a contract so as to fall within the terms of section 230 (3). As to that, she does not contend that she works under a contract of employment so as to be caught by limb (a); rather, she relies on limb (b). To spell it out, it is her case (i) that she works under a contract; (ii) that the other party to that contract is the Lord Chancellor; (iii) that under the contract she undertakes to do or perform work or services personally; (iv) that the work or services in question are ``for'' the Lord Chancellor; and (v) that under that contract the Lord Chancellor's status is not that of a client or customer.

  8. It is the Lord Chancellor's primary case in response that the relationship established by the appointment of a district judge - or indeed any judge - is not contractual in nature, so that the Claimant's case accordingly falls at step (i). It is also his case that he is not a party to any such contract as might be found (step (ii)), nor are the work or service which a judge performs done ``for'' him (step (iv)); but although those points are in principle capable of being free-standing answers to the claim he treats them mainly as feeding into the primary question of whether there is a contract at all.

    THE STATUTORY PROVISIONS RELATING TO DISTRICT JUDGES

  9. The statutory basis on which judges are appointed and serve was subject to important changes as a result of the Constitutional Reform Act 2005, which came into force on 3 April 2006, about two months after the Appellant's appointment. It was both parties' case that those changes did not affect the essential analysis for the purpose of the issues which we have to decide. Accordingly, although we will set out the pre-2005 Act position as it relates to the Appellant's initial appointment, as regards her service thereafter we will confine ourselves to the current position.

  10. Appointment to County Court and salary. The Appellant was appointed a district judge with effect from 6 February 2006: see para. 20 below. At that date section 6 (1) of the County Courts Act 1984 provided that there should be a district judge for each county court district ``who shall be appointed by the Lord Chancellor and paid such salary as the Lord Chancellor may, with the concurrence of the Treasury, direct''. Section 6 was amended by the 2005 Act (and subsequently also by the Crime and Courts Act 2013, which created a single County Court) and now reads, so far as material, as follows:

    ``(1) Her Majesty may, on the recommendation of the Lord Chancellor, appoint district judges.

    ...

    (5) A district judge is to be paid such salary as may be determined by the Lord Chancellor with the concurrence of the Treasury.

    (6) A salary payable under this section may be increased but not reduced by a determination or further determination under this section.''

  11. The High Court. By section 100 of the Senior Courts Act 1981 district judges are also ``district judges of the High Court''. Their assignment to a particular district registry is the responsibility of the Lord Chief Justice, after consulting the Lord Chancellor (see sub-section (1)), but they may also act in a different district registry in accordance with arrangements made by or on behalf of the Lord Chief Justice (see sub-section (3)).

  12. Tenure. Section 11 of the 1984 Act provides as follows:

    ``(1) This subsection applies to the office of district judge.

    (2) Subject to the following provisions of this section and to subsections (4) to (6) of section 26 of the Judicial Pensions and Retirement Act 1993 (Lord Chancellor's power to authorise continuance in office up to the age of 75), a person who holds an office to which subsection (1) applies shall vacate his office on the day on which he attains the age of 70 years.

    ...

    (4) A person appointed to an office to which subsection (1) applies shall hold that office during good behaviour.

    (5) The power to remove such a person from his office on account of misbehaviour shall be exercisable by the Lord Chancellor, but only with the concurrence of the Lord Chief Justice.

    (6) The Lord Chancellor may, with the concurrence of the Lord Chief Justice, also remove such a person from his office on...

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