R(on the application of Yunus Bakhsh) v Northumberland Tyne and Wear NHS Foundation Trust  EWHC 1445 (Admin) – read judgment
This fascinating short judgment explores the extent to which a judicial review claim, or a free-standing claim under the Human Rights Act, may be precluded by a statute covering the same issue.
If Parliament has decided on a particular avenue of appeal in a certain context, and settled upon a sum in compensation, do the courts have any room for manoeuvre outside those statutory limits? There is very strong authority to the effect that the courts have no discretion to grant any relief going beyond the remedy which Parliament has seen fit to provide (see Johnson v Unisys Ltd  1 AC 518). But on arguability grounds at least, this short permission decision by Foskett J suggests that public law must attend to the policy behind the statute. If the redress provided by the legislation does not fully serve the aims of that policy, it may be that public law has to come to the rescue.
In essence the claimant, a former mental nurse who had been sacked because of his trade union activities and not granted reinstatement, was seeking to challenge the decision by his employer, a public NHS trust, not re-engage him after it had been ordered to do so by an Employment Tribunal in 2010. The reason they failed to do so was not put forward but was probably because of his anticipated continued trade union militancy.
A further hearing before the Employment Tribunal took place some three years after his dismissal at which the tribunal awarded the claimant the maximum, statutorily capped, compensation for non-compliance with the re-engagement order as well as a basic award and a compensatory award for unfair dismissal. This tribunal was trenchant in its criticism of the defendant trust’s behaviour, saying it was
“in flagrant breach of the order of re-engagement made on 20 April 2011″ and … that it was “quite impossible … to resist the inference … that [the Defendant] never had any intention of complying with the order of re-engagement and instead had determined to accept (as it effectively does this morning through its Solicitors) a full additional award.” The Defendant had brought no witnesses to explain the reason for not re-engaging the Claimant. The tribunal commented that the Defendant was “a public authority … charged with the spending of public money.”
On the other hand, the net effect of the various awards made by the Employment Tribunal was that the claimant received just over £99,000 by way of compensation and a little over £10,000 in respect of his disability discrimination claim. Nevertheless he was still out of a job and therefore pursued this claim for judicial review, invoking his right not to be discriminated against on grounds of trade union affiliation (Article 11). The defendant trust opposed the application on the grounds that the claimant was attempting to subvert domestic law by obtaining through judicial review what the statutory scheme does not offer. Parliament, it contended, had provided that the statutory award of additional compensation was the only remedy available when an employer elects not to comply with a tribunal order for reinstatement or re-engagement.
Foskett J granted permission for these judicial review proceedings. He did so on two grounds.
Foskett J found it “at least arguable” that the claimant should be able to seek an additional remedy outside the unfair dismissal code particularly as
(a) the defendant was not going to abide by the outcome of the proceedings under that code and
(b) doing so arguably had Article 11 implications.
If the defendant had re-engaged the claimant, he would not have sought an additional remedy. The judge was of the view that this argument was “worthy of consideration”, without speculating as to its ultimate success.
Private law inadequate
The defendant had argued very convincingly that public law had no place in what was essentially a private law employment dispute. The fact that the employer was a public body was nothing to the point, they contended, relying on a number of authorities supporting the proposition that public sector employees are not normally entitled to seek judicial review of their employer’s decisions on ordinary public law grounds (including R v East Berkshire Health Authority ex p. Walsh  QB 152 and McClaren v Home Office  ICR 824).
The claimant suggested on the other hand that the decision not to re-engage was a breach of a public duty imposed by s.6 of the Human Rights Act 1998 on the Trust as a public body to act compatibly with Article 11 (Tum Haber Sen v Turkey(2008) 46 EHRR 19). Although not entirely swayed by this line of reasoning, Foskett J was inclined to the view that it was arguable that the reason given for his non-re-engagement by a public body with an obligation to give effect to his Article 11 rights “at least opens the door potentially” to a judicial review claim. He was not prepared however to go so far as to agree with the claimant’s contention that, if the defendant had acted irrationally, that opened the door to a public law claim. That, the judge said, was putting the cart before the horse:
Many things may be done irrationally, but the fact that they are does not inexorably lead to the availability of a public law remedy.
So there we have it: the trust could not buy its way out of its public law duty, imposed by the HRA and Article 11, not to discriminate against an employee because of his trade union activities. One might think that the trust was somewhere between a rock and a hard place in this situation, and that, in paying up to the hilt the maximum fine agreed by Parliament it could be forgiven for expecting no further punishment from the courts for its transgression. It knew it wasn’t playing the game by the rules when it took Mr Bakhsh’s unionism into account in its decision not to reinstate him. True, in doing this it was disobeying the order of the Employment Tribunal. But the Trade Union and Labour Relations (Consolidation) Act 1992 appeared on the face of it to address such a situation, by providing additional compensation. It is not surely the role of judicial review to make up for the (perceived) shortfalls of democratically agreed remedies. Why should the right of freedom of association cast such a blinding light that the distinction between public law and private law fades from sight?
Given that this was a (renewed) permission decision it is understandable that the judge allowed this important issue to proceed to a substantive hearing. It will be very interesting to see what the Administrative Court makes of it, and what the implications will be for employment law in general if it is decided that it can after all be unlawful in public law for an employer to act in a manner that statute expressly contemplates shall be open to it.
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