Can a judge be a whistleblower?
Sejal Raja reports on a Supreme Court case which sought to determine whether the judiciary should have protection from whistleblowing.
Yes, says the Supreme Court in the case of Gilham v Ministry of Justice  UKSC 44.
What is a whistleblower?
A whistleblower is a worker who discloses wrongdoing. Whistleblowing is when a worker raises concerns about practices occurring in the workplace.
The concerns can relate to a number of different situations such as where a criminal offence has been committed, financial malpractice has taken place, there is a risk to health and safety or there has been a failure to comply with a legal obligation, environmental damage or a miscarriage of justice.
The information disclosed by the whistleblower should, in their reasonable belief, be made in the public interest and such disclosure is referred to as a “qualifying disclosure”.
The Public Interest Disclosure Act 1998 (PIDA) was introduced to protect workers who make a protected disclosure. If a whistleblower is treated badly or dismissed subsequently they may be able to bring a claim at an employment tribunal.
Claire Gilham was appointed as a District Judge from 6 February 2006. In 2009 she was transferred to Warrington County Court from Crewe County Court and it was there where major cost-cutting reforms were declared. Gilham raised her concerns as to the cuts and specifically about:
- the lack of appropriate courtrooms
- the increased workload for District Judges
- administrative failures.
Gilham raised these with local leadership judges and senior managers and also raised a formal grievance.
Gilham claims that the concerns she raised were “qualifying disclosures”, and by raising the concerns she was subjected to a number of detriments.
The detriments that Gilham alleged were delays to investigating her grievance, being seriously bullied, being ignored and undermined by fellow judges and court staff and being informed that her workload and concerns were simply a “personal working style choice”.
Gilham also claimed that she was not supported in her return to work which caused a detriment to her health, leading to psychiatric injury.
Gilham made a claim to the Employment Tribunal in 2015 claiming that she was subjected to a number of detriments because of the concerns that she raised. The Employment Tribunal held Gilham was not a “worker” and therefore had no protection under the whistleblowing provisions.
The Court of Appeal also held that Gilham was not a “worker” and held that a District Judge was an office-holder who did not work under a contract of employment or for services.
Supreme Court findings
In the Supreme Court, Gilham argued that she was not only a “worker” but was also in “Crown employment”.
It was held, and confirmed by Lady Hale, that the whistleblowing protection should be extended for holders of judicial office and that the maker of a protected disclosure shall not be subjected to any detriment for doing so and from making a claim to the Employment Tribunal.
The matter will now be remitted to the employment tribunal for consideration on the basis that Gilham is entitled to claim the whistle-blowing protection.
Gilham has commented that “providing the judiciary with whistleblowing protection can only enhance their independence and that is a valuable constitutional safeguard and it is good for justice.”
The decision did not specifically apply only to judges therefore there could be an argument that in the future other non-contractual roles (previously excluded from such protections) could benefit from whistle-blowing protection such as board members of a company.