Dunbar & Ors, R (on the application of) v Hampshire Fire & Rescue Service

Where alleged misconduct falls within a statutory disciplinary code, the employer’s power to dismiss is fettered by that code. A dismissal must comply strictly with the prescribed procedure. If an appellate authority substitutes its decision for the original disciplinary decision, the employer must give effect to it; refusing to do so is unlawful. Judicial review is appropriate where the issue is whether a public employer has acted within statutory powers. An unfair dismissal claim is not an adequate alternative where the central issue is whether a dismissal remains legally effective. Employees cannot rely on Article 8 to require the dismissal of colleagues with whom they do not wish to work.

The claimants were Hampshire firefighters dismissed following disciplinary proceedings under the Fire Service (Discipline) Regulations 1985. On appeal, the Secretary of State allowed their appeals against both the findings and disciplinary awards. Hampshire Fire and Rescue Service nevertheless maintained that the dismissals remained effective and refused to reinstate or re-engage the claimants.

The claimants sought judicial review of that refusal. The central issues were whether the Secretary of State’s decision substituted for the disciplinary tribunal’s decision, whether the employer could rely on a different conduct-based or other substantial reason for dismissal, and whether an unfair dismissal claim provided an adequate alternative remedy.

1. Claim succeeded. The defendant’s decisions of 12 August 2003 were quashed. The claimants were entitled to reinstatement or correction of the third claimant’s employment record, arrears of salary and interest. Costs followed the event.
2. The Fire Service (Discipline) Regulations 1985 form a comprehensive disciplinary framework. Where the substance of the complaint concerns misconduct within the schedule, the regulations are engaged and fetter the employer’s power to dismiss. The employer may lawfully dismiss only in accordance with the regulations and after strict compliance with them.
3. Under regulation 18, where the Secretary of State allows an appeal or varies the award, that decision takes effect by substitution for the decision appealed against and from the date when the original award took effect. The defendant was therefore required to accept the Secretary of State’s decision. Its refusal to do so frustrated the statutory scheme and was ultra vires.
4. Judicial review was appropriate because the claimants relied on statutory protections and alleged that the public authority had acted beyond its powers. An unfair dismissal claim was not an adequate alternative: it presupposed a dismissal and reinstatement or re-engagement would remain discretionary.
5. The defendant had not made a fresh, distinct dismissal for an independent non-disciplinary reason. It could not recast the original disciplinary dismissals after the Secretary of State had overturned them. The possibility of non-disciplinary dismissal, or in exceptional cases dismissal for some other substantial reason, did not assist on these facts.
6. Article 8 added nothing. Employees had no Article 8 right to require their employer to dismiss colleagues with whom they were unwilling to work.