R (on the application of Bakhsh) v Northumberland Tyne & Wear NHS Foundation Trust
Mr Bakhsh was employed as a mental health nurse by Northumberland Tyne & Wear NHS Foundation Trust from 1998 to 2008. He was dismissed in 2008 and brought a successful employment tribunal claim for automatically unfair dismissal on the ground that his dismissal was by reason of legitimate trade union activities. The tribunal ordered that he be re-engaged.
When Mr Bakhsh attended for work, he was given a letter saying that the trust did not intend to re-engage him as it was not practicable to do so because of:
- alleged material concerns about his registration as a mental health nurse; and
- issues arising from his alleged behaviour since the tribunal proceedings that led the trust to conclude that Mr Bakhsh intended to use his position as a platform for his “continuing agenda” as a militant trade unionist.
The employment tribunal awarded Mr Bakhsh the maximum compensation for non-compliance with a re-engagement order. Mr Bakhsh brought an application for judicial review of the decision not to re-engage him.
Mr Bakhsh sought to challenge the trust’s decision on the basis that, as a public body, it had a duty to act compatibly with the European Convention on Human Rights and in particular art.11, which covers freedom of association. The High Court had to consider whether or not the points raised were arguable.
The High Court considered that it was arguable that Mr Bakhsh could seek a remedy outside the unfair dismissal regime because the trust was not going to abide by the outcome of the proceedings under that regime. This arguably had art.11 implications.
The High Court considered that a legitimate area for consideration by the court was whether or not, as a public body, the trust was entitled to regard its concern about Mr Bakhsh’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.
The court concluded that, on balance, there were issues that are worthy of consideration at a full hearing.
Previous case law has generally supported the proposition that an ordinary employment dispute is not governed by public law and the employer cannot be subject to judicial review merely because the employer is a public body. Public-sector employees are not normally entitled to seek judicial review of their employer’s decisions.
If Mr Bakhsh’s judicial review application is ultimately successful, this could significantly widen the circumstances in which public-sector employees can challenge their employers about decisions made in respect of their employment. This would be a major extension of the law and would provide employees with far more effective sanctions.
In Mr Bakhsh’s case, a successful judicial review could lead to the trust effectively being compelled to re-engage him, which is not an outcome that can be achieved under the unfair dismissal regime. If the claim is successful, it would also potentially provide trade unions with a significant tool to challenge the decisions of public-sector employers in relation to their employees.
Mr Bakhsh’s claim will now be considered at a substantive hearing.
Mike Burns, employment partner, DLA Piper
Practical guidance from XpertHR on re-engagement and reinstatement