Gilham: breaking down the limitations on whistleblowing protection – where next? – Littleton Chambers

‘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. 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.’

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Littleton Chambers, 17th October 2019