The issue in this appeal to the UK Supreme Court was whether a District Judge qualifies as a ‘worker’ or a ‘person in Crown employment’ for the purpose of the protection given to whistle-blowers under Part IVA of the Employment Rights Act 1996 (equivalent of Part VA of the NI 1996 Order). If not, is this discrimination against the appellant in the enjoyment of her right to freedom of expression, protected by article 14 taken with article 10 of the European Convention on Human Rights (ECHR)?

The appellant raised a number of concerns relating to cuts in court funding, in particular the lack of appropriate and secure court room accommodation, her severely increased workload and administrative failures, initially with the local leadership judges and senior court managers, and eventually in a formal grievance. She claimed that the handling of her complaints led to a severe degradation in her health, resulting in psychiatric injury and disability.

In February 2015 she made a two-part claim in the Employment Tribunal, both of which depended on her being a ‘worker’ within the meaning of s 230(3) of the 1996 Act. Her claim for disability discrimination under the Equality Act 2010 is proceeding, as it is accepted that she is a worker for the purpose of European Union law, from which this claim is derived. Her claim under Part IVA of the 1996 Act is not so derived, and the Employment Tribunal determined as a preliminary issue that she was not a ‘worker’ under domestic law for the purpose of the whistle-blowing provisions. It accepted that she therefore had no protection against the infringement of her right to freedom of expression under article 10 ECHR, but that it was not possible to give effect to s 230(3) so as to give her that protection. Her appeals to the Employment Appeal Tribunal and to the Court of Appeal were dismissed.

The Supreme Court unanimously allowed the appeal and remitted the case to the Employment Tribunal on the basis that the appellant is entitled to claim the protection of Part IVA of the 1996 Act.

The appellant argued that she is a ‘limb (b)’ worker under the definition in s 230(3) of the 1996 Act: namely that she works under a contract whereby she ‘undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business’ she is undertaking.

However, the Court found that there was not a contractual relationship as such. Nor, "...are judges in Crown employment. They are not civil servants or the equivalent of civil servants. They do not work under or for the purposes of the functions of the Lord Chief Justice, but for the administration of justice in accordance with their oaths of office."

Nonetheless, the Court found that, "The imposition of detriments, such as the bullying, victimisation and failure to take complaints seriously which the appellant alleges, would be an interference with her right to freedom of speech under article 10 ECHR... There is no evidence that either the executive or Parliament addressed their minds to the exclusion of the judiciary from the protection of Part IVA and no legitimate aim has been put forward... The remedy for the incompatibility of the exclusion of the judiciary from the protection of Part IVA of the 1996 Act with the rights under the ECHR is found in the obligation on the courts in s 3 of the Human Rights Act to read and give effect to primary legislation in a way which is compatible with those rights. It has been established that it is possible to interpret the definition of a ‘limb (b)’ worker to include judicial office-holders when required to do so by EU law, and it would not ‘go against the grain’ of the 1996 Act to do so in respect of the protections of Part IVA. This interpretation should also apply to the equivalent provisions in the Employment Rights (Northern Ireland) Order 1996."
https://www.supremecourt.uk/cases/docs/uksc-2018-0014-judgment.pdf

The video of the summary judgement, delivered by Lady Hale, was not available online at the time of reporting the above summary but should be available here:
https://www.supremecourt.uk/watch/uksc-2018-0014/judgment.html