Case - Bakhsh v. Northumberland Tyne & Wear NHS Foundation Trust

- Lord Hendy QC

In a claim for unfair dismissal, although employment tribunals are able to make an order for re-engagement, they have no power to enforce this order. At least, that is the situation at present.

Mr Bakhsh was dismissed from his former post as a mental health nurse, following a complaint about trade union activities. The employment tribunal found that this dismissal was automatically unfair, and ordered re-engagement. The employer refused. The employer then awarded Mr Bakhsh the maximum compensation for non-compliance with that order.

Mr Bakhsh then attempted to bring proceedings for judicial review of the refusal to re-engage. The first such application was refused on the papers on 29 February, and described as ‘totally without merit’. The renewed application was heard on 18 May. It was argued, on behalf of the applicant, that the Defendant is a public body and as such has a duty to act compatibly with the ECHR – in particular Article 11, which provides for freedom of assembly and association. It was further argued 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 a discouragement both to the Claimant and to others about participating in trade union activities, both of which amounted to a breach of Article 11. The judge, Mr Justice Foskett, found that this argument was worthy of consideration, and that it was arguable that the facts of this case (non-re-engagement by a public body with an obligation to give effect to Article 11 rights) left the door open for a judicial review claim. Permission was granted accordingly.

The full merits of the case stood to be heard on 5 November 2012. If successful, the potential force of re-engagement orders will be significantly strengthened. It is also unusual in that employment disputes have generally been taken to be self-contained, and not subject to judicial review, regardless of whether the employer happens to be a public body. This case may revise that position.

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