A district nursing officer had been dismissed for misconduct. He applied for judicial review. He sought judicial review to quash the decision on the ground that there had been a breach of natural justice and that the district nursing officer had no power to dismiss him.
Held: A claim for judicial review cannot be used to enforce merely private law rights against a public body. An applicant for judicial review has to show that a public law right enjoyed by him had been infringed and that where the terms of employment by a public body were controlled by statute its employees might have rights both in public and private law to enforce those rights, but that a distinction had to be made between an infringement of statutory provisions giving rise to public law rights and those that arose solely from a breach of the contract of employment.
Purchas LJ described the basic question as being whether the remedies sought by the applicant arose solely out of a private right in contract between him and the authority or upon some breach of the public duty placed upon that authority which related to the exercise of the powers granted by statute to it to engage and dismiss him in the course of providing a national service to the public.
Discussing the case law cited to him, Sir John Donaldson MR said: ‘None of these three decisions of the House of Lords . . was directly concerned with the scope of judicial review under RSC, Ord 53 . . In all three cases there was a special statutory provision bearing directly upon the right of a public authority to dismiss the plaintiff . . As Lord Wilberforce said [in Malloch, at pages 1595-1596], it is the existence of these statutory provisions which injects the element of public law necessary in this context to attract the remedies of administrative law. Employment by a public authority does not per se inject any element of public law. Nor does the fact that the employee is in a ‘higher grade’ or is an ‘officer’. This only makes it more likely that there will be necessary statutory restrictions upon dismissal, or other underpinning of his employment . . It will be this underpinning and not the seniority which injects the element of public law.’
May LJ referred to ‘ordinary’ master and servant cases with no element of public law involved and considered that earlier decisions ‘must now be read in the light of the employment protection legislation’: ‘The concept of natural justice involved in many of the cases is clearly now subsumed in that of an ‘unfair dismissal’. To the extent that such cases laid down any principle of law, then of course they must be followed. As always, however, to the extent that they were really decided upon their own facts they provide no precedent for later cases.
Further, I think that at the present time in at least the great majority of cases involving disputes about the dismissal of an employee by his employer, the most appropriate forum for their resolution is an industrial tribunal. In my opinion the courts should not be astute to hold that any particular dispute is appropriate for consideration under the judicial review procedure . . ‘
Judges:
Sir John Donaldson MR, May, Purchas LJJ
Citations:
[1984] EWCA Civ 6, [1985] QB 152
Links:
Bailii
Jurisdiction:
England and Wales
Citing:
Cited – Vine v National Dock Labour Board HL 1957
The plaintiff was employed under a statutory scheme for the employment of dock labourers. He appealed against a finding that the rules on dismissal contained within the scheme were not the only ones appertaining.
Held: (reversing the majority . .
Cited by:
Cited – Sher and Others v Chief Constable of Greater Manchester Police and Others Admn 21-Jul-2010
The claimants, Pakistani students in the UK on student visas, had been arrested and held by the defendants under the 2000 Act before being released 13 days later without charge. They were at first held incognito. They said that their arrest and . .
Cited – Shoesmith, Regina (on The Application of) v OFSTED and Others CA 27-May-2011
The claimant appealed against dismissal of her claim. She had been head of Child Services at Haringey. After the notorious violent death of Baby P, the Secretary of State called for an inquiry under the Act. He then removed her as director. She . .
Cited – Regina (Tucker) v Director General of the National Crime Squad CA 17-Jan-2003
The applicant was a senior officer seconded to the National Crime Squad. He complained that his secondment had been terminated in a manner which was unfair, and left him tainted without opportunity to reply. He appealed against rejection of his . .
Lists of cited by and citing cases may be incomplete.
Employment, Judicial Review, Natural Justice
Updated: 08 April 2022; Ref: scu.258752
