Re-engagement orders and judicial review

by Laurie Anstis on May 31, 2012

Orders for re-engagement – that is, a tribunal order that the individual’s former employer should take them back on as an employee – are rare.

Even if a re-engagement order is made, there may be all kinds of reasons why an employer may not either want to or be able to comply with it, and a re-engagement order cannot be enforced by the tribunal. If the employer does not comply, the most the tribunal can do is award an additional financial penalty.

A recent case has considered whether a public authority’s decision not to comply with a re-engagement order could be subject to judicial review.

In the case of Bakhsh v Northumberland Tyne and Wear NHS Trust, the employer, an NHS trust, was found to have unfairly dismissed the employee as a result of his trade union activities. The tribunal ordered that the employee should be re-engaged, but the trust refused to comply with the order – an action which the tribunal later described as “a flagrant breach” of the order. The tribunal could not, however, enforce the order. It was limited to awarding additional compensation, and made the highest award that it could.

That would normally be the end of the story, but in this case the individual later brought judicial review proceedings against the trust, alleging that the decision by the trust not to re-engage him was irrational or perverse (in the complicated public law sense of those words).

Applications for judicial review have a preliminary process for the court to assess the claim on paper and see whether it is worth a full hearing. Having initially been rejected on paper, the individual applied for an oral hearing, and, in R (Yunus Bakhsh) v Northumberland Tyne and Wear NHS Trust Mr Justice Foskett decided that permission should be given for a full judicial review hearing.

The case has a number of unique features, including the trade union element (which engaged article 11 of the European Convention on Human Rights) which mean that it is unlikely to matter much to the average employment tribunal claimant or respondent, but it will definitely be worth looking out for the full judicial review hearing which will follow, and in particular how the judge hearing the full judicial review deals with arguments from the trust that:

(1) the unfair dismissal regime sets out the only remedies that should be available for unfair dismissal, and

(2) the rights of the trust as an employer are purely private obligations which are not susceptible to judicial review.

[I was alerted to this case by the UK Human Rights Blog, who have a full post on the case here.]