Where a claimant succeeds in a claim for unfair dismissal and the employer is ordered by the Tribunal to re-engage or reinstate the claimant but fails to do so, a Tribunal has the power to order additional compensation of not less than 26 and not more than 52 weeks’ pay, but the Tribunal has no power to enforce the order of reinstatement (section 117 Employment Rights Act 1996).
If the employer is a public body, can the Claimant enforce the original order of re-engagement against them, by a claim for Judicial Review?
In a case concerning a former candidate for General Secretary of the nurses’ union UNISON, Yunus Bakhsh, whose reinstatement the employer refused, essentially on the basis that it feared he would use re-engagement to renew his trade union activities, the High Court has granted permission to the Claimant to bring his claim.
For non-lawyers, that doesn’t mean he has won his case, only that he has got over the first hurdle; there will now follow an ordinary High Court hearing for Judicial Review.
The interim view of Mr Justice Foskett was that a claim such as Bakhsh’s could only very exceptionally succeed. But one factor which troubled Foskett was the reason given by the employer for refusing re-engagement, which appeared to be a very plain infringement of Bakhsh’s freedom of association under article 11 ECHR.
Again for non-lawyers: Judicial Review is a limited remedy, all it means is that the public body has made an unlawful decision, it is then required to make a fresh decision. In some areas of JR it is wholly common for the decision maker to be successfully challenged and the decision overturned, only for the decision maker to take the same decision as before, if perhaps with better reasons, and the case to remain in the courts, clogging them up for some time, without reaching a final outcome.
That reservation aside, this case matters: if Bakhsh was to succeed then it would open up a hole in the wall of resistance facing Claimants who want nothing more than their job back.