Mr J Robertson v South Tyneside Council — 2022

The hearing on 18 March 2022 was a public preliminary hearing before Employment Judge Morris sitting alone. The tribunal considered only the claimant's 'Gilham point': whether, as an elected councillor, he could rely on whistleblowing protection under Part IVA of the Employment Rights Act 1996. The claimant relied on the respondent's code of conduct, Standards Committee, monitoring officer arrangements, internal whistleblowing policy, and the handling of his resignation and attempted retraction. The respondent argued that a councillor holds statutory office rather than employment, that conduct complaints are governed by the Localism Act 2011, and that public law remedies rather than employment tribunal proceedings were the proper route.

Applying the four questions identified in Gilham v Ministry of Justice, the tribunal held that the claimant was not in an analogous situation to employees or workers. It found that councillors receive an allowance that is not wages or remuneration for work, and that the use of 'employee' and 'employer' on HMRC forms was not determinative. It accepted that the respondent cannot remove or suspend a councillor from office save for limited statutory powers, and that the Localism Act 2011 complaints process is a mandatory statutory process rather than an employer-style disciplinary system.

The tribunal also held that the proper officer and monitoring officer were performing statutory functions and were not in a managerial, supervisory, or hierarchical position analogous to the respondent's management of employees or workers. It noted the resignation and purported retraction correspondence, but treated the proper officer's role in that context as receipt under statute and not as evidence of an employment relationship. Although the tribunal accepted that the respondent's policies referred to protecting employees and elected members, it held that those policies did not extend ERA whistleblowing protection to the claimant. It therefore dismissed the detriment claims for lack of jurisdiction and did not need to decide the remaining Gilham questions, the out-of-time issue, or the application to add further respondents. The separate application to strike out the response had been withdrawn and was dismissed.