How liable can public sector employers be?

Jodie Sinclair looks at the recent decision in the High Court case of Bakhsh v Northumberland Tyne and Wear NHS Foundation Trust, where consideration was given as to whether the European Convention on Human Rights (ECHR) extends liability for public sector employers beyond the ordinary statutory unfair dismissal scheme.

Background

The Claimant, Mr Bakhsh, worked as a nurse in the Respondent Trust and was dismissed, in short, for his trade union activities.  He brought a claim against the Trust in the Employment Tribunal and was successful (the tribunal held that his dismissal was automatically unfair under section 152 of the Trade Union Labour Relations (Consolidation) Act 1992, as it was based on his legitimate trade union activities).  As part of their judgment, the ET ordered the Trust to re-engage Mr Bakhsh.  They refused to do this, presumably because they believed he wanted to do this in order to pursue his own agenda.

As a result of the Trust’s failure to comply with the ET’s original orders, Mr Bakhsh brought a further claim and there was a second hearing before the ET.  At this hearing, the ET awarded Mr Bakhsh the maximum compensation for non-compliance with the re-engagement order as well as a basic award and a compensatory award for unfair dismissal. 

Under the Employment Tribunal process this step should have exhausted the remedial options available to Mr Bakhsh in the face of the Trust’s refusal to re-engage him.

Judicial Review Application

Mr Bakhsh took the matter further and applied for judicial review of the Trust's decision not to re-engage him, or, more specifically, the refusal to do this without any legitimate reason. He made this application on the basis that, as a public body, section 6 of the Human Rights Act 1998 required the Trust to act compatibly with the ECHR, in particular Article 11 (freedom of assembly and association).

The Trust opposed the application; they argued that Mr Bakhsh was attempting to subvert domestic law by obtaining, through judicial review, what the statutory scheme does not offer. They stated that the British Parliament had duly provided that the statutory award of additional compensation was the only remedy available when an employer elects not to comply with a tribunal order for reinstatement or re-engagement. 

Decision

The application was initially refused on the papers, but at a hearing the High Court subsequently granted permission for Mr Bakhsh to apply for judicial review of the Trust’s decision.  Therefore, the matter will now proceed to a full hearing where the court will consider whether or not the ECHR provides the courts with discretion to grant relief beyond those which Parliament has seen fit to provide under statute.

In their judgment, the High Court found it “at least arguable” that Mr Bakhsh should be able to seek an additional remedy outside the unfair dismissal code particularly as:

• the Trust was not going to abide by the outcome of the proceedings under that code; and
• doing so arguably had Article 11 implications.

It was made clear that had the Trust re-engaged Mr Bakhsh he would not have sought an additional remedy. The judge was of the view that this argument was “worthy of consideration”, without speculating as to its success at a substantive hearing.

What does is mean for me?

The outcome of the upcoming hearing has the potential to change the legal landscape as regards provision for remedies for successful claimants against public sector employers in certain cases.  At present we do not know when this case will be heard but will ensure the judgement is covered in our publication Employment Eye once it has been published.