Aryubi, R (on the application of) v Birmingham City Council

An internal appeal against a disciplinary sanction may amount to a full rehearing. The appeal body must make clear findings of fact on the central allegation and then select the appropriate available sanction. It cannot terminate a licence merely because the evidence gives rise to concerns or inferences. A court reviewing the decision should not make the missing factual findings itself where that task belongs to the appeal body. The matter should instead be remitted for a lawful decision. Failure by stallholders to register otherwise lawful employees may attract sanctions under the relevant offence-ticket procedure, but does not form part of serious-misconduct proceedings based on an allegation that the employees were unlawfully employed.

The claimants were market traders whose licences to trade at Birmingham’s Bull Ring Market were terminated following a police raid and allegations that they had employed people without the right to work. The Council’s Head of Operations terminated the licences. On internal appeal, the appeal decision-maker rejected the appeal, expressing concerns about the evidence but making no finding on whether the claimants had employed illegal workers. She also referred to failures to register employees.

The claimants sought judicial review of the appeal decision. Permission was limited to whether termination was lawful despite the absence of findings on the central allegation and in light of the sanctioning provisions in the Council’s Rules and Regulations for the Operation of Retail Markets 2006.

1. The judicial review was allowed and the appeal decision dated 4 April 2014 was quashed. The appeal was effectively a full rehearing. The appeal body was entitled to hear evidence and representations afresh, but was required to make factual findings and decide whether to allow the appeal, suspend the stallholders or terminate their licences.

2. The central issue was whether the claimants had employed illegal workers. The appeal decision-maker did not determine that issue. She recorded concerns, stated that the truth was unknown, and relied on those concerns in refusing the appeal. That was a fundamental procedural error. Termination could not lawfully be based on the allegation without a clear finding of fact on it.

3. The reference to failure to register employees was not the basis of the termination decision. In any event, the lawful employment of workers who were unregistered under the Regulations had no part to play in the regulation 10 proceedings for serious misconduct. It might attract sanctions under the offence-ticket provisions.

4. The court could not make the factual findings itself. The appropriate course was to remit the matter to an appropriate appeal body, which had to determine the core allegation on the evidence it considered appropriate and then select the proportionate option available under the Regulations. If it was not satisfied to the applicable standard that the claimants had employed illegal workers, it would be bound to allow the appeal.

The judgment describes a first-instance judicial review claim. The claim was issued on 15 May 2014. Permission was granted on the papers on 30 June 2014, limited to the challenge concerning the 4 April 2014 internal appeal decision. The decision was quashed and the matter remitted to the Council for determination by an appropriate appeal body.