Employment Status - Judicial Office Holders

04 November 2016

4 November 2016

Are judicial office holders employed under a contract?

No, held the EAT in Gilham v Ministry of Justice.

Whilst judges are undoubtedly office holders, the question for the EAT here was whether a district judge was also employed under a contract and was therefore entitled to protection from whistleblowing detriments and dismissal.

Although the Supreme Court held in Ministry of Justice v O'Brien (March 2012) that Recorders are 'workers' (which would ordinarily imply the existence of a contract), that decision was expressly not arrived at on the basis that part-time judges have contracts. Rather Recorders are in an 'employment relationship' within the particular meaning of the framework agreement on part-time work.

O'Brien was distinguished in this case on the basis that it involved EU derived rights, which was not the case here. In rejecting the argument that a contract existed, the judge held that the test was not whether there had been offer, acceptance, consideration and intention to create legal relations, because those concepts may be features of an office as well as contractual requirements.

The primary question involves determining the source of the legal relationship and whether it is contractual or not. Here it was not.