Egbaiyelo, R (on the application of) v National Association Of Citizens Advice Bureaux

A private body that is not a public body is not amenable to judicial review of a contractual employment decision. Unfair dismissal and race discrimination claims belong in the Industrial Tribunal. A claim compromised in full and final settlement cannot later be pursued for compensation. A superior court of record, such as the Employment Appeal Tribunal, is not subject to judicial review. A County Court decision to strike out a hopeless claim under its inherent power must be challenged by appeal. A legitimate employment reference containing no misstatement or misleading matter is not negligent.

The applicant was dismissed by the respondent in 1991. An internal grievance panel found procedural shortcomings and recommended compensation, but rejected the allegation that dismissal had been caused by race. The applicant later accepted £3,000 in full and final settlement.

He sought judicial review of the dismissal, the Industrial Tribunal’s dismissal of his employment claim, the Employment Appeal Tribunal’s dismissal of his appeal, the County Court’s striking out of his contract and negligence action, and the refusal of permission to appeal. The Administrative Court refused relief. The central issues were whether those decisions and the respondent’s conduct were amenable to judicial review, and whether the applicant’s proposed challenges could succeed.

1. Application refused. The proposed judicial review proceedings and appeal were incapable of succeeding. Granting permission would expose the applicant to substantial further costs without a realistic prospect of success.
2. The respondent was not a public body. The applicant’s relationship with it was contractual. Its dismissal decision was therefore not amenable to judicial review.
3. The proper forum for unfair dismissal and race discrimination was the Industrial Tribunal. The employment claim had also been lodged out of time, had been compromised by acceptance of £3,000 in full and final settlement, and had subsequently been withdrawn and formally dismissed. There was no legal basis on which it could survive that settlement. The Race Relations Act expressly contemplated settlement as an exception to the general prohibition on contracting out of the right not to suffer discrimination.
4. The Employment Appeal Tribunal was a superior court of record and was not open to judicial review by the High Court. That aspect of the proposed challenge therefore failed independently.
5. The County Court was, in theory, amenable to judicial review where it exceeded or refused to exercise its jurisdiction. This was not such a case. The County Court had exercised its jurisdiction and had struck out a claim with no prospect of success under its inherent power, rather than giving summary judgment under Order 9, rule 14 of the County Court Rules. Any challenge to that decision had to be pursued by appeal.
6. A genuinely negligent employment reference causing loss may give rise to a claim. The reference in question contained no misstatement of fact, did not mislead, and expressed a legitimate opinion. It was arguably irresponsible for the respondent not to convey that opinion. The negligence claim therefore could not succeed.
7. The race discrimination claim could not be pursued in the County Court because it fell within the Industrial Tribunal’s jurisdiction. The refusal of permission was based on the substantive futility of the proposed proceedings, not merely on the selection of an incorrect procedural route.

• Court of Appeal (Civil Division): [2001] EWCA Civ 1147. Lord Justice Sedley refused permission to appeal.
• High Court, Administrative Court: Maurice Kay J refused the application on the papers, and Scott Baker J refused it in open court. No citation is stated in the judgment.
• Employment Appeal Tribunal: Presided over by Kirkwood J, it dismissed the applicant’s appeal against the Industrial Tribunal’s dismissal of his claim in July 1998.
• Central London County Court: Judge Cowell struck out the contract and negligence action in January 2000 and refused permission to appeal.
• Industrial Tribunal: The applicant’s claim, lodged in April 1992, was withdrawn in September 1992 and formally dismissed.