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Judges are not workers, Court of Appeal rules

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District Judge fails in claim Uber drivers continue to win

Worker status — the apparent panacea to all our employment law woes nowadays — has been denied to a district judge this week, the Court of Appeal ruling an employment contract cannot be derived from judges’ “unique position”.

In a case that bears striking resemblance to the Uber case also currently running the gauntlet of the UK courts, appellant District Judge Gilham had argued judges should be classified as workers. But, unlike the Uber case, Gilham wasn’t hoping to garner worker status for national minimum wage and working time law purposes.

Instead, the case boils down to whistleblowing legislation that protects workers against detrimental treatment if they blow the whistle on the organisation for whom they work. Gilham raised concerns to a senior judge about, in the appeal court’s words, “poor and unsafe working conditions and an excessive workload in the courts where [she] worked”. She alleges that as a result of this, she was bullied and subjected to undue stress.

The case made it to the Court of Appeal, where Gilham was represented by Rachel Crasnow QC, from Cloisters Chambers. Defending the government was Ben Collins QC of Old Square Chambers.

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Unfortunately for the appellant, who is a family judge, yesterday spelled yet another blow for a case which has so far lost at every instance.

The Court of Appeal unanimously ruled that judges are not entitled to the same benefits as workers largely because of a lack of employment contract, which Gilham has tried to argue existed between judges and the Lord Chancellor. The court acknowledged there were “some superficial indicia” of this, but ultimately the relationship is extremely limited and dependent only on the holding of a statutory office. The judgment says:

“[T]he essential point appears to us to be that the core rights and obligations of a judicial office-holder derive from statute and not from any relationship with the Lord Chancellor (or indeed any other member of the executive). At the most profound level, a judge’s obligations derive from the office itself, symbolised by the taking of the judicial oath.”

Lady Justice Gloster, Lord Justice Underhill and Lord Justice Singh unanimously dismissed the appeal. A decision regarding permission to appeal is awaited.

Uber drivers are doing far better on the ‘we are workers’ front. Two, Yaseen Aslam and James Farrar, have successfully argued before two tribunals that drivers are entitled to the employment law rights afforded to workers.

While Uber’s application to leapfrog to the Supreme Court has been refused, an appeal to the Court of Appeal is expected sometime in the next year.

Read the full Gilham v Ministry of Justice judgment here:

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12 Comments

Anonymous

I love watching Mr Bean but my wife doesn’t find it funny. I can only watch Mr Bean when she is not in the house. That feels sad and lonely.

(7)(3)

Anonymous

Oh, that’s a surprise, the Court of Appeal shutting the doors on a whistle blowing judge. Honestly, the amount of dirt that’s within the judiciary, it’s hardly surprising they don’t want to afford their colleagues whistle blowing protection. If you thought the police were corrupt, you ain’t seen nothing. It’s no surprise they let Peter Smith off at hour 11 minute 59. Her only hope is in Europe where the ECtHR will want to give the English judges a difficult time.

(7)(2)

Fiat Justitia

OI LEGALCHEEK WY U NO PUT PICTURE OV GAVEL?

(5)(0)

Anonymous

The senior civil service have had their eye on this case from the start and I would have pleaded it differently to put pressure on Underhill LJ.

See how the lay element of the employment tribunal and employment appeal tribunal were both excluded. The ET and the EAT judges both sat alone. Then it got allocated to a court of appeal led by Underhill !

You could not take the risk of an unfavourable finding of fact and law at any stage.

Note also how Underhill draws a veil over the alleged facts in the opening paragraphs.

I expect some or all of this would have been a runner and it would have been more diificult for Underhill to defend against :

It is clear from the Parliamentary observations surrounding whistleblowing in the (relevant Act) and (the relevant EC directive) that the statutory definition of contract was to have as broad a meaning as possible.

This was in order to cast the net wide enough to stop the bullying of whistleblowers.

The widest part of the relevant definition, and so the part my client relies on, is the notion of an implied contract.

The circumstances of my clients work are that she has a desk, a caseload, cpd obligations, a manager, a supervisor, precise remuneration, security of tenure, sick leave provisions and a pension.

These implied terms are fixed by legislation which wholly or substantially predates the legislation on whistleblowing that she seeks to benefit from.

She also has a lot to whistleblow about, my Lords and Ladies, because of the status that the job is furnished with, the factual scenarios she is privy too and the guidance she is given by her supervisors as to what is regarded, for example, as fair, timely and just.

The latter element of the submission is important because the gist of my learned friend’s points are that she should not be entitled to whistleblower protection. It is submitted that were my client’s case centred on any other part of the second limb of the test for a contract, my learned friend’s submissions would succeed, as they did when the case was rehearsed in the EAT. However, it is clear that there is an implied contract in this instance. It is also clear what the terms of that implied contract are and, finally, it is clear that my client needs whistleblower protection.

It should not, as a matter of public policy, be for the Judges in this court to prevent a trial of the conduct of the Judges in Crewe on a technicality like the one my learned friend raises.

I cannot foresee any other way in which my client will get a fair trial of her whistleblowing claim, which she must be entitled to under Article 6 of the Human Rights Act.

(5)(2)

Anonymous

Take it to ECHR …

(0)(1)

Anonymous

Deep.

(0)(0)

Anonymous

We voted LEAVE, we don’t want all this elitist European tosh!

(0)(0)

Anonymous

Yeah protecting those who whistleblow is really elitist. Cretan.

(1)(0)

Anonymous

It cannot be clearer than this. As the Court pleases.

(0)(0)

Anonymous

“In a case that bears striking resemblance to the Uber case also currently running the gauntlet of the UK courts…”

This case bears no resemblance at all to the Uber action.

Katie, the MoJ doesn’t use an app to summon up judges circulating in the area. Judges don’t earn money calculated by the hours they spend judging. You can’t add a tip after the judge has heard your case.

Happy Christmas!

(1)(0)

Anonymous

You obviously haven’t yet seen the latest MoJ reform proposals.

(5)(0)

Anonymous

Congratulations. You played yourself.

(1)(0)

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