428: Employment Tribunal considers whether trainee curate could bring whistleblowing claim
Whistleblowing complaints can normally only be brought by employees or workers, not by office holders. However, in the 2019 case of Gilham v Ministry of Justice, the Supreme Court established the principle that a claimant may be able to bring a whistleblowing claim if their occupational status is analogous to an employee or worker. In that case, the Supreme Court held that denying whistle-blower protection to holders of judicial office because of their occupational status breached their rights under the European Convention of Human Rights (ECHR) to non-discrimination on grounds of status (Article 14) and to freedom of expression (Article 10).
In the recent case of Green v The Lichfield Diocesan Board of Finance, the Employment Tribunal has considered whether the Gilham principle should be applied to a trainee curate to enable him to proceed with his whistleblowing and disability discrimination claims despite his status as an office holder.
Reverend Green held the office of stipendiary assistant curate in training in the Church of England. He brought claims for whistleblowing detriment concerning abuse and bullying in his training college and diocese, and for disability discrimination in his assessment and ordination process based on a perception that he was autistic. A preliminary hearing was held to consider whether Reverend Green was entitled to pursue these claims.
Since Reverend Green did not argue that he had a worker or employee contract with the Lichfield Diocese, the Tribunal only had to decide whether the extended meaning of worker in Gilham applied. The Diocese argued that assistant curates in training could not be in an analogous situation to employees and workers since they were in a vocational process of ‘spiritual discernment’. However, the Tribunal found that despite having considerable autonomy, Reverend Green had real obligations and duties analogous to those of an employee or worker. He had also been treated less favourably than other employees and workers of the Diocese. The Tribunal concluded that the principle in Gilham applied to Reverend Green’s occupational status and that it would it be a breach of his rights under the ECHR to deny him whistleblowing protection.
The Tribunal also ruled that Reverend Green’s disability discrimination claim could not proceed on this basis because a discrimination claim did not engage the right to freedom of expression in the same way. However, the disability claim could proceed under section 49 of the Equality Act which expressly protects clergy office holders.
This decision was determined on its specific facts, but it does illustrate that the principle established in Gilham can potentially be more widely applied to provide whistleblowing protection to any office holder whose occupational status is analogous to an employee or worker. The Tribunal in this case rejected the argument that a claimant with a religious calling cannot be classed as having an occupational status but, as a first instance decision, this judgment is not binding on other Tribunals and may be appealed.