NHS Trust rapped on knuckles for refusing to reinstate union activist

30 May 2012 by

R(on the application of Yunus Bakhsh) v Northumberland Tyne and Wear NHS Foundation Trust [2012] 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 [2003] 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.

The judgment

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 [1985] QB 152 and McClaren v Home Office [1990] 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.[24]


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.

Related posts:

Sign up to free human rights updates by email, Facebook, Twitter or RSS

1 comment;

  1. James Lawson says:

    It appears that a public body has taken its lead from central government in simply ignoring judgements it does not like (i.e. Hirst). If the Government can simply ignore the rule of law, why not public bodies?

    If I remember correctly, one of the arguments deployed by the government in excluding Article 13 (right to an effective remedy) from the ambit of section 1 and Schedule 1 HRA 1998 is that the court has the power to award an effective remedy under section 8 of the 1998 Act. However, a reading of section 8(3) would, having regard to the financial award already given, appear to make any further award unlikely. The remedy he has received by way of compensation could hardly be regarded as ‘effective’. Moreover, the Enterprise Bill now proceeding through Parliament would, if enacted allow the Secretary of State the power to drastically reduce the maximum tribunal award making it possible for other public bodies to use public money to purchase their way out of inconvenient judgments.

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: