Gilham v Ministry of Justice (Jurisdictional Points: Worker, employee or neither) [2016] UKEAT 0087_16_3110

EAT
Gilham v Ministry of Justice (Jurisdictional Points: Worker, employee or neither)
[2016] UKEAT 0087_16_3110 · 2016-10-31
[15]As Lord Sumption JSC explained in Preston (formerly Moore) v President of the Methodist Conference one of two recurrent themes in the case law on employment status involves "… the distinction between an office and an employment. Broadly speaking, the difference is that an office is a position of a public nature, filled by successive incumbents, whose duties were defined not by agreement but by law or by the rules of the institution. A beneficed clergyman of the Church of England is, or was until recent measures modified the position, the paradigm case of a religious office-holder."[176]The two are not necessarily mutually exclusive and as Lord Sumption held, the question whether there is an express employment contract is not answered by classifying an occupation by type: office or employment. Nor is it answered by any presumption that there was no intention to create a contractual relationship. Instead, he held at [10]:
"The primary considerations are the manner in which the minister was engaged, and the character of the rules or terms governing his or her service. But, as with all exercises in contractual construction, these documents and any other admissible evidence on the parties' intentions fall to be construed against their factual background. …"
[177]Finally at [12] Lord Sumption rejected the argument that a contract should be implied in the absence of an express written or oral contract, where it is necessary. He gave three reasons for that. The second of these was that the practical effect of this argument is to reintroduce the presumption of non-contractual status. Thirdly, he said:
"… whatever the legal classification of a Methodist minister's relationship with his Church, it is not sensible to regard it as implied. It is documented in great detail in the Deed of Union and the standing orders. The question is whether the incidents of the relationship described in those documents, properly analysed, are characteristic of a contract and, if so, whether it is a contract of employment. Necessity does not come into it."
In other words, in a case where there was plainly an intention to create legal relations, the question to be decided having regard to the documents and other admissible evidence, is what legal relationship it was intended to create. 16. I do not accept Ms Crasnow’s submission that the Employment Judge fell into legal error by failing to consider offer, acceptance, consideration and mutuality of obligations. These concepts, including mutuality of obligation, may be features of an office as well as a contract. Where the question whether there is a contract is to be answered in the case of an acknowledged statutory office-holder, the existence of these features may be equally consistent with appointment to the office alone which gives rise to the legal relationship. While the existence of these features may be very significant in a case where there is no office ( Percy v Church of Scotland ), and of some significance in a case where the nature of the contract that defines the relationship is in dispute ( Autoclenz v Belcher ), where the statutory office requires a district judge to perform functions and provides for the receipt of remuneration in return, they do not assist the analysis and cannot be the touchstone for identifying whether the relationship is to be characterised as an office, or by reference to a contract, or both. 17. For the same reason Ms Crasnow’s reliance on ex parte Nangle where the Divisional Court held that if there was an exchange of promises, prima facie there would be an intention to create legal relations, is misplaced. It does not take the matter any further because the primary question here involves determining the source of the legal relationship that undoubtedly exists, and whether it is contractual or not. 18. The Employment Judge did not apply a presumption that there was no intention to create legal relations in this case. There plainly was an intention to create legal relations. The question was whether those legal relations were a contract of employment, or an appointment to an office imposing legal duties and conferring legal rights, or both. 19. In reaching his conclusions in this case the Employment Judge conducted precisely the analysis identified as required by Lord Sumption at paragraph 15 above. Whether there is a contract and if so what is its nature and what are its terms, depends upon the manner in which the individual was engaged and the character of the rules or terms governing her service. Documents dealing with those matters and any other admissible evidence fall to be construed against their factual background. The question is whether the incidents of the relationship described in those documents, properly analysed, are characteristic of a contract and if so, whether it is a contract of employment or for services. The analysis must inevitably take account of the fact that the appointment is described as an office, but that does not preclude a finding that there is a parallel contract even where the duties of the office are statutory. 20. The Employment Judge considered the manner of the Claimant’s appointment as a District Judge to be inconsistent with an intention to enter into a contract. The Claimant’s appointment as a District Judge was by the Queen on the recommendation of the Lord Chancellor pursuant to s.6(1) of the County Courts Act 1984. Although the Claimant’s selection followed a competitive interview process which might have resembled the process for recruiting an employee, she was placed on a reserve list until a vacancy arose. (Her selection as a District Judge occurred before the introduction of the independent body, the Judicial Appointments Commission, now responsible for making recommendations for appointment, with the final decision on whether to accept a recommendation for appointment to the district bench lying with the Lord Chief Justice).[21]The Claimant’s appointment was effected by an Instrument of Appointment signed by the Lord Chancellor following an exchange of letters in which she was offered terms of appointment and accepted these. The language of these documents is that of office rather than contract. The duties, functions and authority of a district judge are defined by the statutory role of district judge and are prescribed by statute and by rules made under statutory authority. There are no significant duties or functions beyond that role, and they do not derive from any private agreement made between the Claimant and the Ministry of Justice.22. So far as terms of service or appointment are concerned, these are contained in the Memorandum on conditions of appointment and terms of service. The Employment Judge did not disregard the fact that the Memorandum is a non-statutory document. He expressly recognised that certain terms (for example, in respect of remuneration and pension provision) derive from statute, but that the Memorandum does not. The Employment Judge moreover acknowledged the similarity of certain terms of service to those identified by the Employment Rights Act 1996 as terms to be included in a statutory statement of particulars. However, what is clear (as the Employment Judge found) is that to the extent that the terms of service extend beyond the immediate requirements of the role of district judge, they are incidental to it. Significantly, none of the terms of service or appointment derive from any privately negotiated agreement between the Claimant and the Ministry of Justice.23. Further, by virtue of s.7 of the Constitutional Reform Act 2005, the Lord Chief Justice (and not the Ministry of Justice or the Lord Chancellor) is responsible for maintaining appropriate arrangements for the welfare, training and guidance of the judiciary and for the deployment of the judiciary and allocation of work within courts.24. Finally, the relationship is not dependent on the will of the parties. Having been appointed, a district judge holds office until age 70 and cannot be removed save on account of misbehaviour or inability to perform the duties of the office (see s.11 of the County Courts Act 1984). Even then, the power to remove is exercisable by the Lord Chancellor but only with the concurrence of the Lord Chief Justice. The Ministry of Justice is accordingly, powerless to act to remove a district judge unless the Lord Chief Justice also wishes to do so.25. In my judgment, there are no features of the method of the Claimant’s appointment, the duties and functions of her role, or the means by which she could be removed from it which support the existence of a contract between her and the Ministry of Justice in addition to the office she holds. There is nothing in the manner or express terms of appointment to indicate that the parties intended to enter into an employment contract. While there are some terms and conditions of service and some aspects of the function of district judges that “partake of some of the characteristics of employment” when the incidents of the legal relationship between the Claimant and the Respondent are properly analysed, they lead to the conclusion that she is an office-holder only, and does not also have a contract of employment. The Employment Judge made no error of law in interpreting the documents in this case, and in reaching that conclusion. He did not adopt an unlawfully restrictive approach and nor was he deflected by general policy considerations or any presumption that there is no parallel contract.26. I reach that conclusion without regard to the line of cases (including Terrell v Secretary of State for the Colonies [1953] QB 482, Knight v Att-General [1979] ICR 194 and Shaikh v Independent Tribunal Service unreported, 16 March 2004) relied on by Mr Collins QC as demonstrating that judges do not have contracts. Those cases were referred to by the Court of Appeal in O’Brien at [47]. As Maurice Kay LJ observed however, none of those authorities was dispositive of that case. The same is true of the present case. Nevertheless, I derive comfort from the conclusion reached by the Court of Appeal in O’Brien that Recorders do not have contracts of employment.27. The Employment Judge did not regard the principle of judicial independence as itself precluding the existence of a contract. That conclusion is challenged by the Respondent whose case remains that if the Crown were the judge’s employer under contract, a real difficulty would arise with the constitutional independence of the judiciary in every case to which the Crown is a party, which necessarily includes every criminal prosecution. I have found this question difficult, but ultimately have come to the conclusion that the Employment Judge was correct on this point too. Since O’Brien it has been accepted that judges are in an “employment relationship” for the purpose of EU derived rights. In O’Brien v Ministry of Justice C-393/10 [2012] ICR 955 at [47-48] the CJEU said:
“47. It must be observed that the fact that judges are subject to terms of service and that they might be regarded as workers within the meaning of clause 2.1 of the Framework Agreement on Part-time Work in no way undermines the principle of the independence of the judiciary or the right of the member states to provide for a particular status governing the judiciary. 48. As the Supreme Court of the United Kingdom observed in its order for reference, judges are independent in the exercise of the function of judging as such, within the meaning of the second sub-paragraph of article 47 of the Charter of Fundamental Rights of the European Union …”
This was an endorsement of the Advocate General’s conclusion that the independence of the judiciary is not a basis for excluding this professional group from the legal protection of the framework agreement. I agree with Ms Crasnow that the real question accordingly is whether acknowledging that “employment relationship” to be on a contractual footing would cause real difficulty with the constitutional independence of the judiciary in every case to which the Crown is a party. 28. For the reasons advanced by Ms Crasnow I do not consider that any real difficulty would arise on this basis. There are substantial safeguards in place to maintain and preserve the constitutional independence of the judiciary. These include the guarantee of continued judicial independence provided pursuant to s.3 of the Constitutional Reform Act 2005; the judicial oath; the security of tenure guaranteed to judges; the fact that an independent body exists to investigate complaints of judicial misconduct pursuant to the Judicial Discipline (Prescribed Procedures) Regulations 2014 and the Judicial Conduct ( Judicial and other office holders) Rules 2014; and the fact that the separation of powers between the judiciary, executive and legislature is protected by constitutional conventions whereby the legislature abstains from interference with the judicial function and vice versa. None of these safeguards depends on the absence of a contract between judges and the Ministry of Justice. 29. Further, a district judge’s entitlement to pay is governed by statute, and paid “out of money provided by Parliament”: s.132 of the County Courts Act 1984. This reinforces the independence of the judiciary. 30. Moreover, there is a distinction between a judge’s independence of decision making without direction from anyone, and the inevitable direction all judges must accept regarding when, where and how that function is to be carried out. This too would not be undermined by the existence of a contractual relationship. Nor do I consider that acknowledging the relationship to be a contractual one (if the documents and circumstances of appointment etc. had justified such a conclusion) would create a perception of bias: the informed, fair-minded observer is assumed to know that a judge is expected to be true to his or her oath ( Harb v Aziz [2016] EWCA Civ 556 at [71]). 31. Accordingly, in agreement with the Employment Judge, I do not consider that there was an express employment contract between the Claimant and the Respondent. The Employment Judge made no error of law in reaching this conclusion and this ground of appeal therefore fails. Ground two: implied contract 32. Ms Crasnow submits that the Employment Judge erred in failing to address an argument based on implication of a contract by necessity. Although the Claimant’s primary case was that the terms of service contained in the Memorandum amounted to an express contract, she advanced an alternative case based on a contract that was to be implied. She submits that the Tribunal’s failure to address this submission and determine this point is an error of law and demonstrates a failure by the Employment Judge to engage properly with the relevant arguments. Ms Crasnow submits that a contract must be implied to protect whistleblowing rights and afford protection to or redress for those who suffer detriments as a consequence. 33. Mr Collins accepts that the Tribunal did not deal expressly with the question whether a contract was to be implied. However he submits that the findings of fact and conclusions provide a clear and complete explanation for the relationship between the parties and afford no scope for any contract to be implied. I agree. The legal relationship between the Claimant and the Respondent is documented in detail and fully explained by and referable to the Claimant’s appointment as an office-holder in accordance with the statutory and constitutional provisions referred to above. I can see no public policy requirement for an employment contract to be implied in this case. The availability of whistleblowing protection that would follow if a contract is implied does not afford any sustainable basis on which it can be said that such a contract is necessary as a means of enforcing such rights. The Claimant has other means available to enforce her rights (including the ability to pursue a grievance and statutory protection against removal from office). 34. Accordingly, the findings of the Employment Judge leave no need or room for an implied contract here, and there was no error of law by him in this regard. Ground three: Human Rights argument 35. Ms Crasnow submits that the qualified right to freedom of expression under Article 10 of the Convention, which extends to whistleblowing protection at work, can and must be given effect to by reading s.230(3) of the 1996 Act in a way that is compatible with those rights. She submits that this is the effect of s.3 HRA and that accordingly, the definition of worker in s.230(3)(b) of the 1996 Act can and should be read so as to include those in an “employment relationship” but who do not have a contract for services. The Employment Judge refused to do so despite his conclusion that the Claimant had no protection for whistleblowing, and that failure is challenged as in error of law. Ms Crasnow submits that it is both possible and necessary to read in “or employment relationship” or words akin to that, to give effect to the Claimant’s Article 10 rights. 36. I do not accept this argument. While I accept (of course) that the strong interpretive obligation in s.3 HRA may require a court to read in words which change the meaning of legislation so as to make it Convention compliant, courts cannot adopt a meaning that is inconsistent with a fundamental feature of the legislation being construed. I agree with Mr Collins that a fundamental feature of s.230(3) of the 1996 Act is to define those within the scope of protection by reference to the existence of a contract, whether a contract of service or a contract for services. 37. This conclusion is reinforced by a consideration of the extent to which Parliament has extended the meaning of ‘worker’ (and associated terms) for the purposes of whistleblowing protection beyond that otherwise provided by s.230(3) of the 1996 Act. Section 43(K)(1) extends the meaning of ‘worker’ and ‘employer’. The extended protection afforded is carefully identified and delineated, preserving the general rule that a contractual relationship is required for ‘worker’ status save only in a limited number of circumstances (for example agency and NHS arrangements) where the requirement to have a contract is replaced by a requirement to work for a person in particular circumstances or performing particular services. 38. Parliament has therefore given detailed consideration to what protection should be given and to whom. The effect of the Claimant’s submission is to add an additional category of ‘worker’ who is not required to have a contractual relationship but nevertheless entitled to protection for whistleblowing, on the assumed basis that this category was wrongly excluded by Parliament when it introduced s.43K. 39. It seems to me that Parliament was or would have been entitled to conclude that extended protection is unnecessary to give effect to the Claimant’s Article 10 rights. Judicial office holders have a range of protections for the right not to suffer whistleblowing detriments. These include: (i) s.3 of the Constitutional Reform Act 2005 which guarantees judicial independence; (ii) s.11 of the County Courts Act 1984 which guarantees a district judge’s tenure, so that he or she can only be removed from office on limited grounds as described above. Any such removal (or other disciplinary action) would have to be consistent with regulations laid down by Parliament in the Judicial Discipline (Prescribed Procedures) Regulations 2014 and the rules made under them; (iii) a district judge’s salary is protected pursuant to s.6(6) of the County Courts Act 1984; (iv) district judges may make a complaint about another judicial office holder under the 2014 Regulations and the Judicial Grievance Policy; and may make a complaint about Ministry of Justice staff under the relevant Ministry of Justice policy. Although the Claimant relies on asserted restrictions placed on the scope of her own grievance, this is not borne out by the grievance investigation conducted in her case, or by the Judicial Grievance Policy, October 2013. Any alleged failure to act in accordance with these statutory requirements or the Respondent’s own policies is subject to the oversight of the courts. 40. A district judge’s position is therefore quite different from that of a worker or employee who does not benefit from such protections (and indeed from the position of the Russian judge in Kudeshkina v Russia 52 EHRR 37). In many respects, a district judge is protected to a greater degree than other workers. 41. Article 10 does not require any particular means of safeguarding the freedom of expression of a judicial office holder. Where adequate safeguards are in place there can be no necessity to rewrite s.230(3)(b) so as to permit the specific route to a remedy provided by s.47B of the 1996 Act. I am satisfied that there are adequate safeguards in place to protect freedom of speech, contrary to the Employment Judge’s conclusion to the opposite effect at paragraph 94 (where he concluded that the Claimant has no protection at all). In any event, any further extension of the meaning of worker in s.43K(1) is properly a question for Parliament. 42. Accordingly, in agreement with the Employment Judge, I consider that it is not possible to read s.230(3) of the 1996 Act in the way (or ways) suggested by the Claimant. Such a reading is fundamentally inconsistent with the legislative scheme requiring an individual to be engaged under a contract (save in carefully delineated cases) to qualify as a ‘worker’ and for whistleblowing protection. Conclusion 43. For all these reasons notwithstanding the persuasive and forceful submissions advanced by Ms Crasnow, all grounds of appeal fail and the appeal is accordingly dismissed.