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Martin Fodder and Jeremy Lewis write Judges can be whistleblowers! Whatever next?

Introduction

Whistleblowing protection continues to expand and develop. Even without reliance on Art.10 ECHR the Courts have not been shy of adopting what might at first appear to be a strained construction of the legislation to further the underlying policy objectives[1].  Now the Supreme Court’s decision in Gilham v Ministry of Justice [2019] UKSC 44 has demonstrated the strength of the interpretative obligation to construe the legislation in accordance with Article 10 (or that article read with A.14 ECHR).  Indeed this points to the possibility of extending the scope of protection much further.  Litigation over the position of secondees, applicants, volunteers and others, as well as in relation to detriment  inflicted because of a perception (justified or not) that a worker  has or may be about to make a disclosure, or was associated in some way with someone else’s disclosures, can be expected. These cases will need to explore the scope of the State’s positive obligation to protect freedom of expression. They will no doubt face arguments that the necessary reading down is against the grain, or contrary to fundamental features, of the statutory provisions.

[1] See eg International Petroleum Ltd and others v Osipov and others [2019] IRLR 52 (CA), construing s.47(2) so as to permit claims of detriment consisting of dismissal by employees against co-workers or agents and therefore vicariously against the employer.

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