A recent case before the Scottish Court of Session held that judicial review is not normally an appropriate mechanism for examining employment practices (Gray -v- Watson and Ors  ScotCS CSIH_81).
In this case Mr Gray, who was the managing director of Braid Logistics UK, was suspended before being summarily dismissed for alleged misuse of an expense account. Mr Gray was offered the right to appeal against this decision.
Before any appeal was held, Mr Gray applied to the Court of Session to strike down his dismissal and to restrain the respondents from taking further action. This was on the grounds that the appeal committee appointed by his employer was procedurally flawed and its apparent bias.
Mr Gray’s petition was rejected by the court. It held that its supervisory jurisdiction generally may only apply where no other remedy was available. It found that it was necessary to consider the nature of the act or decision under challenge as well as the basis of the challenge. In Mr Gray’s case, he sought to challenge the contractual right of his employer to suspend him, the investigation into his conduct and the constitution of the appeal panel. The court found that the appropriate remedy lay with the employment tribunal. Therefore, its jurisdiction to hear the petition for judicial review was not invoked.
In England and Wales a decision can only be subject to judicial review where it involves an issue of public law. Judicial review has wider application in Scotland and it is possible for private law cases to be amenable to judicial review. While this decision is not binding in England and Wales, it is a persuasive decision as to the breadth of decisions that might be the subject of judicial review.
Judicial review is unlikely to be an appropriate mechanism in circumstances where the foundation of an individual’s case is rooted in employment law where an alternative remedy, for example before the employment tribunal for a claim of wrongful or unfair dismissal, is available.
However, there are some circumstances in which it will be appropriate for an individual to bring judicial review proceedings in respect of decisions or acts which affect their employment. Judicial review is an available remedy for individuals seeking to challenge the decision of a public body. It is relevant to the NHS and still remains an important consideration in the context of health education in the UK. It is an available remedy for those seeking to challenge the decisions of training bodies, such as Health Education England, who are not the employer of those it trains, but who make decisions which can significantly affect a trainee’s employment.