R v East Berkshire Health Authority, Ex parte Walsh (Walsh, Ex parte)

Employment by a public authority does not by itself give an employment dispute a public law character. Judicial review may be available where legislation directly restricts the authority’s power to dismiss or otherwise gives the employee a protected statutory status.

Where legislation merely requires specified terms to be incorporated into the employment contract, compliance creates contractual rights. A subsequent breach of those terms remains a private law matter and does not attract administrative law remedies.

The power to continue judicial review proceedings as an action begun by writ preserves appropriate relief where its basis proves to be private law. It does not permit an applicant to replace the relief originally claimed with materially different relief.

Mr Walsh, a senior nursing officer employed by the East Berkshire Health Authority, was dismissed following a disciplinary hearing. An internal appeal upheld the dismissal. He applied both to an industrial tribunal for compensation for unfair dismissal and to the Divisional Court for judicial review.

The judicial review application alleged that the officer who dismissed him lacked authority and that the disciplinary process infringed natural justice. Hodgson J held that his employment possessed a sufficient public law character and refused the authority’s application to dismiss the proceedings in limine.

The authority appealed. The central question was whether the complaints concerned enforceable public law obligations or only rights arising from the contract of employment. The court also considered whether the proceedings should continue as an action begun by writ under rule 9(5) of Order 53.

1. Appeal allowed unanimously. Sir John Donaldson MR, May LJ and Purchas LJ held that the application disclosed no public law element capable of attracting judicial review. The application was dismissed.

2. Employment by a public authority does not, without more, make disputes concerning dismissal matters of public law. The employee’s seniority, professional standing and the public interest in fair treatment are also insufficient. What matters is whether legislation directly restricts the authority’s power to dismiss, gives the employee a protected statutory status or otherwise underpins the employment in a legally material way.

3. The decisions in Vine, Ridge and Malloch involved special statutory provisions bearing directly on the relevant power of dismissal or the employee’s protection. They did not establish that every employee of a public body may challenge dismissal by judicial review. In particular, Malloch depended upon statutory protection from which a right to be heard could be implied.

4. The National Health Service (Remuneration and Conditions of Service) Regulations 1974 required approved Whitley Council conditions to be included in the contracts of the relevant employees. Had the authority failed to incorporate those conditions, public law relief could have compelled compliance. The required conditions were incorporated into Mr Walsh’s contract. His complaints that the authority breached them, including by improper delegation and procedural unfairness, therefore asserted private contractual rights.

5. The presence of natural justice requirements within a contractual employment relationship does not itself engage the court’s supervisory jurisdiction. The questions whether the purported dismissal complied with the contract and whether it was unfair were suitable for determination through private law proceedings or by an industrial tribunal under the Employment Protection (Consolidation) Act 1978.

6. Rule 9(5) of Order 53 is an anti-technicality provision. It may preserve proceedings where the relief already sought rests on private rather than public law. It does not authorise an applicant to amend the case so as to seek materially different relief. Mr Walsh had claimed certiorari and an abandoned prohibition, while the terms of any declaration had never been formulated. The proceedings would therefore not be continued as an action begun by writ.

• Court of Appeal: Allowed the health authority’s appeal and dismissed the application for judicial review. Costs here and below were awarded but were not to be enforced without leave. Leave to appeal to the House of Lords was refused.
• High Court, Queen’s Bench Division (Divisional Court): Hodgson J rejected the authority’s preliminary contention that judicial review was inappropriate. He held that the employment relationship contained a sufficient public law element and indicated that the proceedings could alternatively continue as if begun by writ.