The Supreme Court has decided that judges are protected against being victimised for whistleblowing, despite the fact that at first sight they do not fall within the scope of the relevant legislation. It is hard to predict how widely this ruling will be applied, but it has the potential to extend protection to a much wider group of individuals, including office holders like non-executive directors and charitable trustees.
Unlike the UK’s discrimination legislation, protection for whistleblowers is not currently underpinned by EU law. That means that it relies on the definition of worker in the Employment Rights Act, which has not, at least until now, been interpreted as broadly as the corresponding definition in the Equality Act. So it had been widely assumed that if a claimant is not an employee, they must have been engaged under a contract to do work personally in order to qualify for whistleblowing protection. Judges are not able to point to the existence of a contract, since for constitutional reasons they are office holders: broadly speaking their rights and obligations are defined by statute and not by contract. There are many other types of office holders in this position.
This latest case was brought by a district judge who claimed that she had been victimised after making what she asserted had been protected disclosures about the way cost-cutting measures were being implemented in the Wales and Chester circuit. Her claim had been rejected at the employment tribunal because she could not demonstrate that she was a “worker” as defined in the Employment Rights Act. Both the EAT and the Court of Appeal rejected her appeals, which left the Supreme Court to make a definitive ruling.
The Supreme Court said that the lower courts were correct to conclude, on a literal reading of the worker definition, that judges did not qualify for protection. That, however, was not the end of the matter. It was necessary to consider its interpretation in the light of the Human Rights Act. In a unanimous judgment, it ruled that to deprive a judge of the protection of whistleblowing legislation just because she was an office holder would amount to an unjustified interference with her right to freedom of expression under article 10 of the European Human Rights Convention. That meant that the interpretative provisions of the Human Rights Act came into play. These require our courts to read primary legislation, where possible, in a way which is compatible with Convention rights. In these particular circumstances, the Supreme Court decided to extend the definition of worker to office holders whose terms of appointment required them to do work personally, and who were not in business on their own account.
Clearly this decision paves the way for all judges to qualify for whistleblowing protection. But because its reasoning depends on Human Rights considerations, it is not clear how far it extends. Should other categories of office holder wish to establish similar protection, they would need to argue that it would be incompatible with their Convention rights to exclude them from the scope of our whistleblowing legislation. That would involve assessing whether they had any alternative means of expressing concerns in the public interest and their degree of vulnerability to victimisation.
A neater solution would be for the Government to align the scope of whistleblowing protection with that available to individuals under the Equality Act. Among other things, that would involve extending protection to defined categories of office-holders and also to applicants for employment (where protection is currently only available within the NHS).