Alan McCormack | Senior Associate

Employment tribunal considers whether whistleblowing and discrimination claims can be raised by a trainee curate

An Employment Tribunal held that denying an assistant curate’s right to bring a claim of whistleblowing detriment would be a breach of his rights under Article 14 of the ECHR but denying employment-related discrimination claims would not.

Gilham v Ministry of Justice [2019] UKSC 44

In Gilham v Ministry of Justice [2019] UKSC 44, the Supreme Court determined that, even though district judges are not workers for the purposes of the Employment Rights Act 1996 (ERA 1996), holders of judicial office are entitled to whistleblower protection and denying them rights because of their occupational status would breach their rights to freedom of expression under Article 14 of the European Convention on Human Rights (ECHR).

The employment tribunal recently considered whether the principle in Gilham extended to whistleblowing and discrimination claims brought by a assistant curate in the Church of England.

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

In Green v The Lichfield Diocesan Board of Finance ET/2409635/2022, the Claimant, Reverend Green, brought claims of whistleblowing detriment and employment-related disability discrimination. The Respondent, The Diocese of Lichfield, argued that Reverend Green was neither a worker, nor an employee and requested that his claims be struck out.

Following a 4-day preliminary hearing, the employment tribunal held:-

Having answered the four Gilham questions in the affirmative, the whistleblowing claim could proceed. Reverend Green’s occupational status was analogous to an employee or worker, and it would be a breach of his rights under Article 14 of the ECHR to deny him whistleblowing protection.

Reverend Green was not an employee under section 83(2) of the EqA 2010 as he did not have a contract with the respondent, which he conceded during his submissions at the preliminary hearing. The principle in Gilham did not apply to discrimination claims as these claims, unlike whistleblowing claims, did not engage rights to freedom of expression under Article 14 of the ECHR.

There was no need to extend the EqA 2010 definition of employment to give effect to Reverend Green’s rights under EU law because he could continue to pursue his discrimination claims as an office holder under section 49 of the EqA 2010, which was intended to give protection against discrimination to clergy office holders.

The employment tribunal emphasised that it had only considered the situation of Reverend Green as an assistant curate and not any other minister, so a different outcome could be reached on a different set of facts.

Should you require any advice in relation to pursuing or defending a whistleblowing or discrimination claim in the Employment Tribunal, please do not hesitate to contact our specialist team of solicitors today.

Alan McCormack

Alan McCormack

Employment Law Team

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