Bakhsh, R (on the application of) v Northumberland Tyne & Wear NHS Foundation Trust [2012] EWHC 1445 (Admin)

Case No CO/1151/2012[2012] EWHC 1445 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue LEEDS DISTRICT REGISTRY, Leeds Combined Court Centre, 1 Oxford Row, Leeds, LS1 3BGDate 28/05/2012
Before
MR JUSTICE FOSKETT
Between
THE QUEEN ON THE APPLICATION OFClaimantYUNUS BAKHSHClaimantNORTHUMBERLAND TYNE & WEARDefendantNHS FOUNDATION TRUSTDefendant
John Hendy QC and Robert Askey (instructed by Christian Khan & Co) for ClaimantNigel Giffin QC (instructed by Ward Hadaway) for DefendantHearing Hearing dates: 18 May 2012
Judgment
[1]This is a renewed application for permission to apply for judicial review, permission having been refused on the papers by His Honour Judge Langan QC on 29 February this year. He characterised the claim as “totally without merit” for reasons that he set out in a short reasoned decision. The Defendant, of course, says that he was entirely correct. The Claimant disagrees and says that he overlooked a number of important issues. It falls to me to assess the arguments I have received from Mr John Hendy QC, for the Claimant, and Mr Nigel Giffin QC, for the Defendant, over the course of a hearing lasting just under 3 hours. The issue is solely whether the Claimant’s proposed claim is arguable. If I so decide, it will be for the judge at the substantive hearing to determine whether or not the claim should succeed.[2]There is an issue about precisely when the decision sought to be challenged was made to which I will return, but the substance of the case relates to the decision of the Defendant to refuse to re-engage the Claimant in its employment as a registered Mental Health Nurse following an order to that effect by an Employment Tribunal on 21 April 2011.[3]For over 20 years, from October 1988 until June 2008, the Claimant was employed by the Defendant in the capacity I have mentioned. It is not in issue that he was good at his job. However, he was dismissed from that employment in June 2008 following a fairly lengthy suspension that took effect in September/October 2006 after the management received an anonymous letter from a female employee complaining about the attitudes and actions in the context of union activities of the Claimant and another male union representative.[4]After a hearing lasting several weeks in March and April 2010, on 21 July 2010 an Employment Tribunal sitting in Newcastle found that the dismissal was by reason of his legitimate trade union activities and hence the dismissal was automatically unfair pursuant to s.152 Trade Union and Labour Relations (Consolidation) Act 1992. The tribunal found that he had also been subject to disability discrimination. This decision was not appealed. The written decision of the Employment Tribunal ran to well over 100 pages and, though I have not read every line of it, it appears to have been thorough and comprehensive and reviewed all the evidence in considerable detail. It vindicated substantially the case advanced by the Claimant.[5]The Claimant had described himself before the tribunal as a “militant trade unionist”. He had held positions within UNISON from at least 1994 and by the time of the events that gave rise to his dismissal he was on full-time release from his duties with the Defendant. The Employment Tribunal recorded that he was known to be “robust and highly committed – if not aggressive” both by his trade union colleagues and by the Defendant’s management team. He undoubtedly organised protests and voiced concerns about various issues.[6]The case came back before the same tribunal between 18 and 20 April 2011 on the question of remedy. On 21 April the tribunal ordered the Claimant to be re-engaged from 30 June 2011 and awarded him a little over £25,000 net to represent loss of income until the date of re-engagement, £12,000 compensation for injury to feelings pursuant to section 149 of the 1992 Act and compensation for disability discrimination totaling just over £10,000. There was no appeal against this judgment.[7]When the Claimant attended for work on 30 June 2011 he was given a letter saying that the Defendant did not intend to re-engage him, no intimation to that effect having been given to him before that. The reason for refusal of re-engagement was the Defendant’s assertion that it was not practicable to offer him employment within the Trust for two reasons: first, alleged “material concerns” about his registration as Mental Health Nurse (which, I should add, on the evidence before me seemed in the fullness of time to have been resolved, but this issue may require further evidence at any substantive hearing); second, issues arising from his alleged behaviour since the tribunal decision of April 2011 which led the Defendant to conclude that he intended not simply to “take up [his] post but to use this as a platform for [his] own continuing agenda”. Because this is an issue that has concerned me particularly in the application before me, I will quote that part of the letter in full: “In addition, however, it is right to say that we have been very concerned about your behaviour since the Remedies hearing which we consider belies the statements you made to the Tribunal. We noted that at the hearing you stated that you were no longer a union member. It was also stated that you held no grudge against the organisation and purely wished to return in the role of a nurse. The Tribunal itself indicated its view that the cause of the difficulties arose from your Trade Union activities, an aggravating factor which in the light of your evidence appeared to have been removed. Specifically the Tribunal emphasised that the purpose of the Order they made was not to enable you to cause difficulties to the trust’s management. Since the Remedies hearing, we have become aware of the following by way of example:• Immediately after the Tribunal decision you immediately put in train a publicity campaign around your re-engagement. This includes information on the web (particularly on Socialist Worker online) interviews and articles in both press and television.• We note that in a number of these articles reference is made to matters beyond the fact of the re-engagement order and raise further concerns relating to colleagues and senior management in the Trust.• Throughout the time of your suspension and the matters related to this hearing, you have continued to hold Unison meetings at Unison national conferences. This includes a meeting in Liverpool in April and a meeting and circulation of leaflets at the latest Unison conference which was held only last week.• We note that you held a celebration special social event which was publicised by a flyer, the content of which is clearly contentious. We believe that this is evidence of your intent not to simply take up your post but to use this as a platform for your own continuing agenda.”• Immediately after the Tribunal decision you immediately put in train a publicity campaign around your re-engagement. This includes information on the web (particularly on Socialist Worker online) interviews and articles in both press and television.• We note that in a number of these articles reference is made to matters beyond the fact of the re-engagement order and raise further concerns relating to colleagues and senior management in the Trust.• Throughout the time of your suspension and the matters related to this hearing, you have continued to hold Unison meetings at Unison national conferences. This includes a meeting in Liverpool in April and a meeting and circulation of leaflets at the latest Unison conference which was held only last week.• We note that you held a celebration special social event which was publicised by a flyer, the content of which is clearly contentious.[8]Plainly, the Defendant had decided not to comply with the Employment Tribunal’s order and the second reason given suggested that his anticipated continued militancy, whether as a union official or otherwise, played a not insignificant part in the decision.[9]A further hearing before the Employment Tribunal took place on 3 November 2011 at which the tribunal awarded the Claimant the maximum, statutorily capped, compensation for non-compliance with the re-engagement order as well as a basic award and a compensatory award for unfair dismissal. That sum was £17,160. No interest was awarded since the statute does not permit it.[10]The tribunal expressed itself, not unsurprisingly, very robustly saying that the Defendant was “in flagrant breach of the order of re-engagement made on 20 April 2011” and saying that it was “quite impossible … to resist the inference … that [the Defendant] never had any intention of complying with the order of re-engagement and instead had determined to accept (as it effectively does this morning through its Solicitors) a full additional award.” The Defendant had brought no witnesses to explain the reason for not re-engaging the Claimant. The tribunal commented that the Defendant was “a public authority … charged with the spending of public money.” The tribunal said that the case amounted to “a decision taken by public officials to use public money allocated for the Health Service to flout an order of this Tribunal and to do so quite deliberately and without any justification so far as this Tribunal is concerned.” It expressed the view that the penalty for failing to comply with an order for re-engagement, which was restricted to £17,160 in this case, was an inadequate remedy. It was, as I have said, the maximum additional award that could be ordered.[11]The net effect of the various awards made by the Employment Tribunal was that the Claimant received just over £99,000 by way of compensation and a little over £10,000 in respect of his disability discrimination claim.[12]By these proceedings he seeks judicial review of the decision not to re-engage him, or, more accurately, as Mr Hendy seeks to put it, the refusal to re-engage him without any legitimate reason. It is, of course, his contract with the Defendant that was breached by the Defendant’s actions and he has received the maximum compensation permitted by Parliament through the process ordained by statute. I will return to that after setting out in short form the essential case sought to be advanced by Mr Hendy.[13]At the forefront of Mr Hendy’s argument is the proposition that the Defendant is a public body and, by virtue of section 6 of the Human Rights Act, has a duty to act compatibly with the ECHR and, in particular for present purposes, Article 11. Article 11 is as follows: Freedom of assembly and association 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

Freedom of assembly and association

[14]Mr Hendy referred to the established principle that the Convention must be interpreted in a way that ensures that the rights it embodies are given practical and effective effect, not merely theoretical or illusory effect: see, e.g., Armoniene v Lithuania (2009) 48 EHRR 53 and, in the particular context of trade unions, Danilenkov v Russia [2009] ECHR 1243 where the following was said:
“123. Nevertheless, as to the substance of the right of association enshrined in Article 11, the Court takes into consideration the totality of the measures taken by the State concerned in order to secure trade-union freedom, subject to its margin of appreciation (see Demir and Baykara v. Turkey [GC], no. 34503/97, § 144, 12 November 2008). An employee or worker should be free to join, or not join a trade union without being sanctioned or subject to disincentives (see Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom, no. 11002/05, § 39, ECHR 2007 ...). The wording of Article 11 explicitly refers to the right of “everybody”, and this provision obviously includes a right not to be discriminated against for choosing to avail oneself of the right to be protected by trade union, also given that Article 14 formed an integral part of each of the Articles laying down rights and freedoms whatever their nature (see National Union of Belgian Police, cited above, § 44). Thus the totality of the measures implemented to safeguard the guarantees of Article 11 should include protection against discrimination on the ground of trade union membership which, according to the Freedom of Association Committee, constitutes one of the most serious violations of freedom of association capable to jeopardize the very existence of a trade union (see paragraph 107 above). 124. The Court finds crucially important that individuals affected by discriminatory treatment should be provided with an opportunity to challenge it and to have the right to take legal action to obtain damages and other relief. Therefore, the States are required under Articles 11 and 14 of the Convention to set up a judicial system that would ensure real and effective protection against the anti-union discrimination. 125. The Court thus has to consider whether sufficient measures were taken by the authorities to protect the applicants from alleged discriminative treatment on the ground of their choice to join the trade-union.”
[15]In essence Mr Hendy argues that, by reason of the Defendant’s decision not to re-engage the Claimant without justification(a) the compensation in his case was inadequate and(b) the stance taken would be such as to afford a disincentive both to the Claimant and to others about participating in trade union activities. That is arguably, he asserts, a breach of Article 11. He submits that the decision of the Defendant was unlawful and irrational and fails to give effect to the Claimant’s Convention rights.[16]The first point taken against the present claim is that the Claimant has secured the maximum redress available through the domestic courts and that what is being attempted through the judicial review process is a subversion of the domestic law through the statutory scheme (carefully drafted, Mr Giffin submits) laid down by Parliament: that statutory scheme makes an award of additional compensation the only remedy when an employer elects not to comply with a tribunal order for reinstatement or re-engagement.It cannot be unlawful in public law, it is argued, for an employer to act in a manner that statute expressly contemplates shall be open to it, subject only to the sanction of such compensation as may be awarded by a tribunal. Nor could it ever be right as a matter of discretion for the court in judicial review proceedings to grant any relief going beyond the remedy which Parliament has seen fit to provide. Reliance is placed on Johnson v Unisys Ltd [2003] 1 AC 518 for the proposition that for the courts to provide a common law remedy for unfair dismissal going beyond the limits of the statutory code would be wrong in principle. It follows, it is contended, that a judicial review claim or a free-standing claim under the Human Rights Act is not open to the Claimant.[17]Mr Giffin’s essential argument is that the unfair dismissal code is Convention-compliant and represents the only basis of redress for the Claimant. It is a cardinal principle of that code that the compensation is subject to maxima and minima. He did submit that if, for any reason, it was thought that the unfair dismissal code did not, in the circumstances, provide an adequate and effective remedy for the Claimant, then section 6(2)(b) of the Human Rights Act would represent the answer. In relation to that argument, Mr Hendy says that the one thing that the Defendant was not doing was giving effect to or enforcing the relevant provisions of the unfair dismissal code. That does seem to me to be an arguable point should the issue raised by Mr Giffin’s submissions arise.[18]The more difficult argument, it seems to me, is whether, in the light of the principle established in a case such as Johnson v Unisys Ltd, it is open to someone in the Claimant’s position to seek further redress. Mr Hendy argues that that case does not assist: it was a case where an attempt was being made to use the “implied term” argument to establish the right to a claim for damages for the manner of someone’s dismissal which the House of Lords rejected because Parliament had provided the unfair dismissal code to meet such a situation. Mr Hendy argues that it does not mean that the unfair dismissal code is entirely self-contained in the way that it is being argued by the Defendant.[19]I am concerned solely with whether the points raised on behalf of the Claimant are arguable. I can see the strength of the argument that having, as it were, “bought in” to the unfair dismissal code, the Claimant cannot go outside it. On the other hand, I think the converse argument is worthy of consideration by the court in a way that enables the arguments to be put forward and considered in a more measured way than is possible on a permission application. It is, in my view, arguable that the Claimant can seek an additional remedy outside the unfair dismissal code particularly as(a) the Defendant was not going to abide by the outcome of the proceedings under that code and(b) doing so arguably has Article 11 implications. Mr Hendy submits that the power to provide an effective remedy for the Claimant was vested in the Defendant: if they had re-engaged him, he would not have been seeking an additional remedy. That argument is worthy of consideration. I say nothing about its ultimate success.[20]However, there is another issue to be considered for deciding whether permission should be granted. Mr Giffin argues that there was no public law element to the decision sought to be challenged and there can be no claim for judicial review in respect of the Defendant’s decision not to re-engage him unless that decision was one governed by public law.[21]Mr Giffin has drawn attention to a number of authorities supporting the proposition that an ordinary employment dispute is not governed by public law merely because the employer is a public body and that public sector employees are not normally entitled to seek judicial review of their employer’s decisions on ordinary public law grounds. He referred, amongst others, to R v East Berkshire Health Authority ex p. Walsh [1985] QB 152 and McClaren v Home Office [1990] ICR 824.[22]Mr Hendy for the Claimant says that where there is statutory underpinning of the challenged act in an employment relationship and where there are statutory restraints placed on the power to dismiss, public law comes into play. He relies on the factors said to be relevant in R (Tucker) v Director General of the National Crime Squad [2003] ICR 599, the third of which is whether the Defendant is performing a public duty owed to the Claimant in the particular circumstances under consideration. As already indicated, the suggestion is that the decision not to re-engage was a breach of a public duty imposed by s.6 of the Human Rights Act 1998 on the Trust as a public body to act compatibly with Article 11 of the ECHR which protects his right to legitimate trade union activity. Reference is made by Mr Hendy to the case of Tum Haber Sen v Turkey (2008) 46 EHRR 19.[23]I have some reservations about this argument as articulated. However, a legitimate area for consideration by the court seems to me to be whether, as a public body, the Defendant was entitled to regard its concern about the Claimant’s future conduct if re-engaged because of his actions when a full-time trade union official as a reason for not re-engaging him. Every case is fact-specific and the court has not previously been faced with such a situation, so far as I am aware, but it is arguable that the reason given for his non-re-engagement (though not ever sought to be justified to the Employment Tribunal) by a public body with an obligation to give effect to his Article 11 rights at least opens the door potentially to a judicial review claim.[24]Mr Hendy did suggest that the fact that there was, as he submitted, an irrationality argument available to the Claimant meant that this enabled a judicial review claim. I cannot accept that: it is, to my mind, putting the cart before the horse. If there is a “public law” element to a relationship between two parties, that may open the door to an irrationality argument by one party affecting the other. Many things may be done irrationally, but the fact that they are does not inexorably lead to the availability of a public law remedy.[25]Nonetheless, despite that reservation, on balance I am persuaded that there are matters worthy of consideration at a full hearing. Judge Langan’s view may ultimately prevail, but I am not myself persuaded, on the basis of the arguments I have heard, that the Claimant’s case is “totally without merit”.[26]Does delay prevent the claim from proceeding? I do not think so. One can analyse the situation in a number of ways, but overall I do not think that the process leading to the eventual realisation by the Claimant that there was no future with the Defendant occurred until at or about the time of the hearing before the Employment Tribunal in early November last year. Arguably, things moved a little slowly after that, but not so slowly as to preclude this claim from being dealt with on its merits.[27]Having granted permission to proceed, it will be necessary for the Defendant to discharge its duty of candour to the court and to the Claimant. Equally, it will be necessary for the Claimant and his advisers to review the merits of the claim as any new material emerges and not to proceed if it becomes clear that the claim cannot succeed. With the high level representation that each party has in this case, I am confident that careful consideration will have been given to the merits of each party’s position before the final hearing takes place.[28]As I indicated at the conclusion of the hearing, if permission was granted, which it now has, I would hope that Mr Hendy and Mr Giffin could agree necessary directions for the purposes of the substantive hearing. If not, the matter can be dealt with on the papers by a judge.