Are whistleblowing and discrimination claims possible when brought by a trainee curate?

A trainee curate of the Church of England recently instituted claims of whistleblowing detriment and disability discrimination. While Reverend Green was not obviously a worker or employee (who would otherwise benefit from the legal protections), the Employment Tribunal had to consider whether the principles established in the case of Gilham v Ministry of Justice applied.

In Gilham the Supreme Court delivered a crucial verdict affirming that holders of judicial office are entitled to whistleblower protection, in that case despite the fact that district judges are not classified as workers under the Employment Rights Act 1996 (ERA 1996). The Supreme Court’s rationale was that a refusal to provide whistleblower protection based on occupational status was in violation of individual’s rights to freedom of expression enshrined in Article 14 of the European Convention on Human Rights.

As might be expected, the Diocese of Lichfield, the purported respondent in the Employment Tribunal proceedings brought by the curate, challenged Reverend Green’s ability to pursue his claims. It argued he was neither a worker under the ERA 1996 (to benefit from whistleblower protection) or an employee under the Equality Act 2010 (to benefit from protection from employment-based discrimination). The Diocese applied to have the Reverend’s claims struck out on that basis.

At a preliminary hearing to determine the issue, the Tribunal concluded that it was possible for both claims to proceed notwithstanding the fact that Reverend Green did not satisfy the definition of an employee or worker. The Gilham principles were held to be relevant where Reverend Green’s occupational status was akin to that of an employee or worker and where any denial of whistleblower protection to Reverend Green would infringe his Convention rights. The Reverend’s disability discrimination claim could also proceed under a provision less commonly relied upon; section 49 of the Equality Act 2010 prohibits discriminatory treatment of office holders. As such no purposive application of the law was required to uphold his Convention rights.

This is one of what is likely to be a line of cases that look to apply and expand the scope of the Gilham principles which have long been expected to have ramifications for legal protections other than whistleblowing and in occupations other than judicial postholders.

This case should act as a cautionary tale to organisations not to take too narrow a view of who amongst their ‘workforce’ may and may not have legal protection where the traditional concepts of employee and worker are not the outer limits of those protections.

Case Reference: Green v The Lichfield Diocesan Board of Finance ET/2409635/2022

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