Bakhsh, R (on the application of) v Northumberland Tyne & Wear NHS Foundation Trust

At the permission stage, the court asks only whether the proposed judicial review claim is arguable. An ordinary employment dispute does not acquire a public-law character merely because the employer is a public body. An irrationality argument becomes relevant only after a public-law element has been identified.

It was arguable that a public authority’s refusal to comply with an employment tribunal’s re-engagement order, motivated in part by concern about the claimant’s continuing trade-union activities, could engage the duty under section 6 of the Human Rights Act 1998 and Article 11 of the Convention. It was also arguable that an additional remedy might be available outside the statutory unfair-dismissal scheme, particularly where the public authority had not complied with the tribunal’s order.

The claimant, a registered mental health nurse, had been dismissed by the defendant NHS Foundation Trust. An Employment Tribunal held that the dismissal was automatically unfair because of legitimate trade-union activities and also involved disability discrimination. On 21 April 2011, the tribunal ordered re-engagement.

The Trust refused to re-engage him, citing concerns about his professional registration and his conduct and anticipated continuing trade-union activity. The Employment Tribunal subsequently awarded the maximum compensation for non-compliance with the re-engagement order. The claimant sought judicial review of the refusal, relying on public-law principles and Article 11 of the Convention.

Permission had previously been refused on the papers as totally without merit. The issue before the court was whether the proposed claim was arguable.

1. Permission granted. The court was concerned only with arguability, not with deciding whether the claim would ultimately succeed. The claim was not totally without merit.
2. The statutory unfair-dismissal scheme provided compensation for non-compliance with an order for reinstatement or re-engagement. It was arguable, however, that a claimant could seek an additional remedy outside that scheme, particularly where the employer was a public authority and had not complied with the tribunal’s order. The effect of Johnson v Unisys Ltd [2003] 1 AC 518 on that issue required consideration at a substantive hearing.
3. Under section 6 of the Human Rights Act 1998, the defendant was required, as a public body, to act compatibly with Convention rights. Article 11 protected freedom of association and trade-union participation. It was arguable that refusal to re-engage, where continuing militancy or trade-union activity formed part of the reason, could impose a disincentive engaging Article 11, particularly when read with the requirement of practical and effective protection.
4. The mere fact that an employer was a public body did not make an ordinary employment decision amenable to judicial review. The court considered R v East Berkshire Health Authority ex p Walsh [1985] QB 152 and McClaren v Home Office [1990] ICR 824. A public-law element had first to be established. Only then could an irrationality challenge arise; alleged irrationality alone did not create a public-law remedy.
5. It was arguable that the Trust’s reliance on the claimant’s anticipated future conduct, in circumstances involving his Article 11 rights, supplied such a public-law issue. The question was fact-specific and had not previously been addressed in that precise setting.
6. Delay did not prevent the claim proceeding. The relevant process was arguably not complete until about the Employment Tribunal hearing in November 2011. The substantive proceedings were therefore permitted to continue, subject to the defendant’s duty of candour and the parties’ continuing obligation to review the merits.

Permission for judicial review was refused on the papers by His Honour Judge Langan QC on 29 February 2012, with the claim characterised as totally without merit.

High Court (Administrative Court): the renewed application was granted. The court held that the proposed claim was arguable and should proceed to a substantive hearing.