Judges can be whistleblowers too, Supreme Court rules following landmark case

Judges can be whistleblowers too, the Supreme Court has concluded in a landmark ruling involving district judge who claimed she was forced out after raising concerns about cuts.

District Judge Claire Gilham has been involved in a lengthy legal battle to have a "whistleblowing"  claim aired at an employment tribunal.

However a unanimous ruling by five Supreme Court justices, led by Lady Hale, today concluded that excluding judges from whistle-blowing protection is a breach of their human rights.

The ruling follows seven years of legal wrangling and means that Judge Gilham’s case can now proceed at a tribunal.

Judge Gilham, who was appointed in 2006 and sat at Warrington County Court in Cheshire, says she was "treated detrimentally as a result of raising concerns about systemic failings in the court administration".

She initially raised concerns in 2010 about the impact of the government’s major cost cutting reforms to the Court Service.

She then blew the whistle about bullying, lack of appropriate and secure courtroom accommodation, the severely increased workload and administrative failures.

She claimed that her complaints were “qualifying disclosures” under section 43B of the Employment Rights Act 1996 as they were about a failure to comply with legal obligations, that miscarriages of justice were likely, and that health and safety was being or was likely to be endangered.

Judge Gilham argued that she was entitled to protection due her status as a whistle-blower.

However after blowing the whistle, she  claimed she was seriously bullied, ignored and undermined by her fellow judges and court staff and suffered a breakdown as a result.

Following the ruling Judge Gilham told The Telegraph: “I took an oath to do right by all manner of people without fear or favour. It’s really important and personal - and I don’t want to be in fear of the people I work with.”

“I hope that judges will not become so inhibited by fear of consequences if they feel they need to comment in the public interest on something that’s happening right in front of them,” she added.

“When this actually begins to impact your cases, it feels completely wrong to keep that secret.

“I’m delighted.  Winning is a great relief after these seven long years in which the rights of judges to speak out about conditions in the justice system have been denied.”

“Providing the judiciary with whistle-blowing protection can only enhance their independence and that is a valuable constitutional safeguard and it is good for justice.”

Judge Gilham had previously suffered defeat in her battle to bring a whistleblowing claim against the Ministry of Justice (MoJ) in the employment tribunal, losing a test case at the Court of Appeal in December 2017.

During the 2017 proceedings, a QC representing the judge said her case was that "she was bullied and overloaded with work to the extent that she suffered a breakdown which led to her being unable to work for years".

At the heart of the case are findings that judges are not afforded the legal protections given to whistleblowers under employment legislation because they are not classed as "workers" but are office-holders.

In February 2015, Ms Gilham presented claims to the employment tribunal of "public interest disclosure detriments" - whistleblowing - and disability discrimination.

The disclosures concerned what were said to be poor and unsafe working conditions and an excessive workload in the courts where she was based, affecting herself and other judges.

The MoJ contested the tribunal's jurisdiction to entertain the whistleblowing claim because she was not a "worker" within the meaning of the 1996 Employment Rights Act.

The Act says: "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."

However Supreme Court justices have now ruled that the judge, and other judicial office-holders, were entitled to claim the protection given to whistleblowers under the 1996 Act.

Lady Hale, the Supreme Court president, said: "I can reach no other conclusion than that the Employment Rights Act should be read and given effect so as to extend its whistleblowing protection to the holders of judicial office."

Emilie Cole, partner at Irwin Mitchell who has represented Judge Gilham since the start of her litigation journey in 2014 said: “Widening the scope of whistle-blowing protection is fundamentally in the public interest and benefits wider society.

“This is a massive step forward in equality law and will have wide implications for the greater good.  Justice has finally prevailed.”

An MoJ spokesman said: “The Government has accepted the court’s judgment and is considering how to implement it.”