GILHAM -v- MINISTRY OF JUSTICE: A REMINDER OF THE ORIGINAL COMPLAINTS: “MISCARRIAGES OF JUSTICE WERE LIKELY”

The Supreme Court judgment yesterday in Gilham v Ministry of Justice [2019] UKSC 44 provides a landmark ruling on the issue that judges are “workers” and entitled to the protection of the Employment Rights Act 1996. There will be many commentaries on the employment aspects of this case. However it is worthwhile remembering the original complaints. These can now be heard by the Employment Tribunal and, no doubt, the complaints and findings of the Tribunal will be of considerable interest not only to lawyers but to all litigants, indeed everyone.

“The appellant raised a number of 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.“

THE CASE

The claimant is a District Judge. She brought an action in the Employment Tribunal. The Tribunal found that she was not a “worker” as envisaged by the legislation, this decision was upheld by the Court of Appeal.  She was successful in her appeal to the Supreme Court.  The matter will now be heard by the Employment Tribunal.

THE ORIGINAL COMPLAINTS

There is one judgment, given by Lady Hale, with which the rest of the Court agreed.

The history of the case

4.  The appellant was appointed a district judge by the then Lord Chancellor, Lord Falconer of Thoroton, with effect from 6 February 2006. Under section 6 of the County Courts Act 1984, as it then stood, district judges were appointed by the Lord Chancellor. As it now stands, they are appointed by Her Majesty the Queen on the recommendation of the Lord Chancellor. In October 2005, the appellant had been sent a letter offering her appointment which talked in terms of her accepting that offer. The letter itself contained several stipulations as to the duration of her appointment, her salary, her pension on retirement, and other matters. Enclosed with the letter was a memorandum entitled “District Judges – Memorandum on conditions of employment and terms of service”. This was a detailed document, which included terms as to sitting days, sick pay, maternity, paternity and adoption leave, training, the prohibition of legal practice, relations with the press and media, outside activities, and much more. The memorandum made it clear that the salary was taxed under Schedule E to the Income Tax Act and that the judge was an employed earner for the purpose of national insurance contributions. Although described as a “life-time” appointment, a judge is required to vacate office on her 70th birthday (unless extended) and can resign before that date. The appellant’s Instrument of Appointment, signed by the Lord Chancellor on 27 January 2006, simply talked in terms of his approving her to sit at each of the county courts on the Wales and Chester circuit.

5.  In fact, she first sat at the Crewe County Court and in 2009 transferred to the Warrington County Court. In 2010, the Cheshire courts were transferred to the Northern Circuit and major cost cutting reforms were announced. In 2011, the Runcorn County Court was closed and the business transferred to Warrington, as were some tribunal sittings. The appellant raised a number of 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 raised these with the local leadership judges and senior managers in Her Majesty’s Courts and Tribunals Service and eventually in a formal grievance.

6.  She claims that her complaints fell within the definition of “qualifying disclosures” under section 43B of the 1996 Act, in particular as tending to show a failure to comply with legal obligations, that miscarriages of justice were likely, or that the health and safety of any individual had been, is being or is likely to be endangered. The disclosures were made to an employer or other responsible person within the meaning of section 43C of the 1996 Act and thus they were “protected disclosures” within the meaning of section 43A.

7.  Under section 47B(1) of the 1996 Act, a worker has the right “not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure”. The appellant claims 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; she also claims that a severe degradation in her health, resulting in psychiatric injury and a disability under the Equality Act 2010, was such a detriment. The appellant was signed off work due to stress from the end of January 2013 but has recently returned.