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Whistleblowing charity Protect welcomes Supreme Court decision on protection for judges

The Supreme Court has handed down a judgment today which confirms that judges are protected under whistleblowing provisions under Part IVA of the Employment Rights Act 1996, following a case brought by District Judge Claire Gilham.

Posted on 16 October 2019

The whistleblowing charity Protect, who were represented by law firm Leigh Day, intervened in the case and have welcomed today’s judgment. 
Bob Matheson, Head of Advice & Advocacy at Protect, said:

“We are delighted with the Supreme Court’s decision. Our most senior judiciary have firmly recognised the fundamental importance of whistleblowing rights for all of those in work and that the government must provide these rights in a consistent well-reasoned way, rather than through piecemeal reforms in response to scandals. We were all struck by the court’s observation that the government doesn’t have a plausible reason why our judges were denied the same right to call out wrongdoing as other workers, it just hadn’t put its mind to the issue.

"For much too long the burden of bringing our whistleblowing legislation up to date with the rest of the world has been placed on whistleblowers like Judge Gilham. To expect so much from those who have already spoken up on our behalf is unconscionable.

"Protect has recently put forward specific proposals for reform of our whistleblowing law to correct the fact that it has fallen behind many of our international counterparts. We call on the government, and wider society, to seize the opportunity provided by this judgment and work with Protect to re-establish the UK as a world-leader in this area, and properly protect those who do so much to protect all of us.”

Kiran Daurka, partner and employment solicitor at Leigh Day, said: 
“Today’s judgment by the Supreme Court is a significant step forward in protection for whistle blowers and our client believes that by extending whistleblowing protections to the judiciary it will make the justice system a safer place, allowing judges to raise their concerns without fear of being penalised as a result.  Importantly, Lady Hale says that the government did not justify why judges were excluded from whistleblowing protections.  She said that the government or Parliament had never considered protections for the judiciary and could not therefore explain why they should not be given the protections given to others.  In our view, similar observations can be made about other groups of office holders who have not yet been given express whistleblowing protections.” 


Protect intervened in both the Court of Appeal and Supreme Court cases brought by Judge Gilham and supported the arguments that judges should be entitled to whistleblowing protection and that to deprive judges of whistleblowing protection is incompatible with Article 10 of the European Convention of Human Rights (ECHR), namely the right to freedom of expression without interference by public authority; and Article 14 which it was argued should entitle judges to whistleblowing protection as not to do so would result  in discrimination because of their status as judges when compared to other workers or employees who are afforded the same right.  
The Supreme Court agreed that the exclusion of the judiciary from the protection of Part IVA of the 1996 Act is incompatible with Article 14 of the ECHR when read with Article 10. The Court used its interpretive duty and power under s3(1) Human Rights Act 1998 to read and give effect to the relevant provisions of the Employment Rights Act to extend whistleblowing protection to holders of judicial office. The Supreme Court has ruled that it is possible to read into the Employment Rights Act 1996 to ensure that judges are protected.  The case will now be referred back to the Employment Tribunal to consider the merits of the claim substantively. 
As a District Judge, Claire Gilham said she raised concerns in 2013 about the stresses and dangers faced by those working in the courts and the effects on justice and due process as a result of an under-resourced system. She claimed that after she raised these concerns no action was taken and she was subjected to bullying and the stress of greater workloads. She argued in her legal case that she suffered detriments as a result of blowing the whistle.  
Protect intervened in the case as it has been campaigning for some time for the whistleblowing law, the Public Interest Disclosure Act (PIDA), to be extended to cover all individuals in the workplace, based on its experience in dealing with whistle-blowers and the whistleblowing legislation.