Employment - leave to apply for judicial review.
[2023]JRC116
Royal Court
(Samedi)
11 July 2023
Before :
|
Sir Timothy Le Cocq, Bailiff
|
Between
|
Lindsey Gina Greechan
|
Applicant
|
And
|
States Employment Board
|
Respondent
|
Advocate M. P. Boothman for the Applicant.
Advocate J. P. Rondel for the Respondent.
judgment
the bailiff:
1.
This is an
application by Lindsey Gina Greechan ("the Applicant") for leave to
apply for judicial review against the States Employment Board ("the
Respondent") for a decision of 18 November 2022 refusing to quash the
decision of the Respondent's officials to dismiss the Applicant on 24 May
2022, the effect of which was the Applicant's dismissal from
employment. The relief sought is
the quashing of the decision dismissing the Applicant and accordingly her
reinstatement.
Background
2.
The
background is set out in the Applicant's affidavit of 18 February
2023. In brief, the Applicant was
employed by First Recruitment Limited ("FRL") between December 2021
and April 2022. FRL was contracted
by the Government of Jersey to provide telephone assistance to the public of
Jersey on the Covid Helpline.
3.
Pursuant
to that contract, the Applicant was given access to a computer database and was
authorised access to that database to, amongst other things, book Covid PCR
tests, arrange vaccination appointments, and place orders for Lateral Flow
testing kits.
4.
The
computer database contained information, which the Applicant was able to
access, regarding individuals who were registered with the Social Security
department to verify personal details and to undertake the tasks that the
Applicant was required to do.
5.
The
Applicant remained in her role with FRL until April 2022 and thereafter, on 3
May 2022, she commenced employment with the States Treasury as an adviser. In that context, she was employed by the
Respondent in accordance with the Employment of States of Jersey Employees
(Jersey) Law 2005 ("the 2005 Law").
6.
On Friday
20 May 2022, however, the Applicant was informed that she was under
investigation and was required immediately to leave the building.
7.
On 23 May
2022 she was called into the building to discuss:
"concerns which have been
brought to our attention and to advise you of the proposed course of
action"
8.
The
meeting took place as scheduled on 24 May 2022. At that meeting, the Applicant was told
that a concern had arisen from information received that the Applicant had
accessed information on the computer database which was inappropriate for her
to see. She had apparently accessed
her own data records and those of members of her family and she was informed
that she should have known from her training that this was not permitted.
9.
During the
course of the interview, the Applicant explained that her training had not made
the situation clear. She subsequently
established, according to her affidavit, that the induction course that she had
supposedly completed - which in fact she had not - stated that it
was not acceptable to look up friends' records "just out of
interest". She denies,
however, that she ever did that and she only accessed other people's data
in order to do her job of helping callers on the Helpline.
10. In paragraph 5 of her affidavit, the Applicant
says that her meeting was brief and before she had the opportunity to say
anything, she was told that the decision had been made to terminate her
employment with immediate effect.
She had admitted accessing her family's data records and in a
letter of the same day, she was told that doing so was regarded as gross
misconduct and therefore her contract would be terminated with immediate
effect.
11. She did not have the opportunity, so she
claims, to explain that the training she actually did receive, and any mistakes
or otherwise that she had made, were not done whilst employed by the Government
of Jersey but rather by FRL and that any breach of policy was entirely
unintentional. The lack of notice
of what the meeting was to deal with and the short duration of it made it
impossible for her to defend herself.
12. In the letter of 24 May 2022, she was advised
of her ability to appeal and she wrote to the Group Director, People and
Corporate Services on behalf of the Respondent the following day. The Group Director responded on 20 June
2022 confirming he had had the opportunity to review the case which included
the points that she had made and a desk-top review of the case, and had
concluded that the decision to dismiss was the correct one.
13. The Applicant thereafter pursued the Respondent
in the Employment and Discrimination Tribunal in relation to certain ancillary
matters but she could not make a claim against the Respondent for unfair
dismissal because she had not been employed for the requisite 26 weeks. Accordingly, a settlement agreement that
she reached was concluded with the Respondent over matters unrelated to the
fact of her dismissal.
14. The Applicant secured political representation
to raise the matter with the Board of the Respondent and the Applicant
understands the matter was considered by the Board on 18 November 2022 but by
letter from the Chief Executive of the Government of Jersey of 14 December
2022, the Applicant was informed that the appeal decision had been considered
and upheld.
15. It is in that context that the Applicant seeks
judicial review of the decision to dismiss her and the refusal of the
Respondent to review that decision on the 24 May 2022 and around 18 November
2022 respectively.
The legal framework
16. Rule 16/1 of the Royal Court Rules 2004 (as
amended) ("RCR") provides as follows:
"16/1 Application and
interpretation
(1) Except in cases where an appeal
is available against a decision of a public authority or body, and subject to
paragraph (3), an application for a declaration, injunction or any other order
in any public law matter must be brought by way of an application for judicial review
made in accordance with this Part unless the Court otherwise orders.
(2) For the purposes of this Part,
an application is made in a public law matter if the application relates to the
validity of a judgment, decision, order or other action of a public authority
or body, or seeks relief to compel a public authority or body to perform a duty
owed by it in public law or seeks to restrain it from acting in a way that
would be invalid.
(3) In determining whether an
application falls within paragraph (1), the Bailiff or Court shall have regard
to -
(a) the nature of the matters in
respect of which relief is sought;
(b) the nature of the persons and
bodies against whom relief is being sought; and
(c) all the circumstances of the
case."
17. The Applicant submits that the Respondent is a
public body established under the 2005 Law and the decisions that are the
subject of the application were taken contrary to the duties owed by the
Respondent under that Law. The
Applicant cites Article 8 of the 2005 Law which is in the following terms:
"8 Functions of States
Employment Board
(1) The States Employment Board
shall -
(a) employ persons on behalf of the States and administrations of
the States;
(b) ensure that the public service conducts itself with economy,
efficiency, probity and effectiveness;
(c) ensure the health, safety and well-being of States'
employees;
(d) determine any other matter that may reasonably be considered
necessary for the proper administration and management of States'
employees; and
(e) discharge any other function conferred on it by or under any
enactment.
(2) The States Employment Board
shall, for the purpose of the discharge of the functions described in paragraph
(1)(a) to (c) -
(a) give directions regarding consultation or negotiation with
States' employees, or with representatives of States' employees,
concerning the terms and conditions of employment of States' employees;
(b)
issue codes of practice concerning -
(i) the training and development needs of States' employees,
(ii)
the procedures for recruitment of States' employees,
(iii) the procedures for appraisal of the performance of
States' employees,
(iv) the procedures for disciplining, suspending and terminating the
employment of States' employees; ..."
The Law on leave
18. The test to be applied by the Court in respect
of applications for leave for judicial review is set out in a number of
judgments and, most recently, in WE (Jersey) Limited v Minister for the
Environment [2022] JRC 044, as that set out by Commissioner Beloff in Warren
v Lieutenant-Governor [2017] (1) JLR 291 which is in the following terms:
"3. The test for such leave
in this jurisdiction, as applied in Welsh -v- Deputy Judicial Greffier
(7), is that set out by the Privy Council in Sharma -v- Browne-Antoine
(6) [2007] 1 WLR 780, at para 14(4):
"The ordinary rule now is
that the court will refuse leave to claim judicial review unless satisfied and
there is an arguable ground for judicial review having a realistic prospect of
success and not subject to a discretionary bar such as delay or an alternative
remedy: see R -v- Legal Aid Board, Ex p Hughes (1992) 5 Admin LR 623, 628
and Fordham, Judicial Review Handbook 4th ed (2004), p426. But arguability
cannot be judged without reference to the nature and gravity of the issued to
be argued. It is a test which is flexible in its application."
4. For an application for judicial
review to succeed, the Royal Court would have to be satisfied that His
Excellency's decision was unlawful, irrational or flawed by procedural
impropriety (Planning & Environment Cttee. -v- Lesquende Ltd. (4))
and for present purposes I must be satisfied that one or more of those grounds
is arguably established on the material before me."
19. In Sharma, cited above, the Judicial Committee
of the Privy Council also stated:
"It is not enough that a case
is potentially arguable: an applicant cannot plead potential arguability to
"justify the grant of leave to issue proceedings upon a speculative basis
which it is hoped the interlocutory processes of the court may
strengthen": Matalulu v Director of Public Prosecutions [2003] 4 LRC712,
733."
Relevant authorities
20. A number of cases were put before me. The first was Regina v East Berkshire
Health Authority, Ex parte Walsh [1985] QB 152. In that case, a senior nursing officer
applied for judicial review to quash his dismissal on the grounds that
individual who dismissed him had no powers to do so and on the grounds of
procedural impropriety. The Court
of Appeal of England and Wales found that the remedy of judicial review was
only available where an issue of 'public law' was involved. Sir
John Donaldson M.R. found the following:
"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 special
statutory restrictions upon dismissal, or other underpinning of his employment:
see per Lord Reid in Malloch v. Aberdeen Corporation, at p. 1582. It will be
this underpinning and not the seniority which injects the element of public
law. Still less can I find any warrant for equating public law with the
interest of the public. If the public through Parliament gives effect to that
interest by means of statutory provisions, that is quite different, but the
interest of the public per se is not sufficient".
In turn, LJ Purchase stated:
"... At the end of the
day I find myself returning to the basic question, did the remedies sought by
the applicant arise 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 them to
engage and dismiss him in the course of providing a national service to the
public? In my judgment there is no arguable case which can be mounted upon the
facts disclosed even if they are all assumed in favour of the applicant to the
effect that the remedies sought by him stem from a breach which can be related
to any right arising out of the public rights and duties enjoyed by, or imposed
upon the health authority. The only remedies sought by the applicant arise
solely out of his contract of employment with them as opposed to any public
duty imposed upon the health authority".
21. In Regina (Shoesmith) v Ofsted and Others
[2011] PTSR 1459 the Claimant was employed as a local authority's
Director of Children's Services ("DCS"), which was a
statutory post introduced by the Children Act 2004. Following the death of a
child which was under the authority's child protection plan, a review
report was produced in short order, leading to the summary dismissal of the
Claimant on the basis of the Secretary of State's direction and without
compensation or payment in lieu of notice. The Claimant issued judicial review
proceedings against the decision to dismiss her. The Court found at paragraph
91:
"I have emphasised the word
"accountability" and shall have to return to it. It is obvious from
the words of the statute and of the guidance that a DCS is the person within a
children's services authority with ultimate executive responsibility and
accountability for children's services. It is a position created,
required and defined by and under statute. It falls comfortably within the
circumstances referred to in Ridge v Baldwin [1964] AC 40. Moreover, it seems
to me that if one focuses on "statutory Underpinning" in accordance
with Ex p Walsh [1985] QB 152, one is driven to the same conclusion. Stepping
aside from the details of the present case and the multiplicity of parties, if
a local authority were to dismiss a DCS in total disregard for the rules of
natural justice, I am in no doubt that, whatever alternative remedy might be
available in the employment tribunal, the dismissal would be amenable to
judicial review. Miss Simler suggests that such an analysis only arises when
the power to dismiss is itself circumscribed by statutory provision. I
disagree. Indeed in Ridge v Baldwin itself the application succeeded not only
by reference to regulations made pursuant to statute but also on the basis of a
common law requirement of natural justice: see Lord Reid, at pp 79-80;
Lord Morris of Borth-y-Gest, at p 121; and Lord Hodson, at pp 127 and 135. I
consider that the judge was correct on the issue of amenability".
22. The Applicant refers to the limits imposed by
the Employment (Jersey) Law 2003 (the "Employment Law") in
relation to claims for unfair dismissal, however, as observed by Deputy Bailiff
Birt, as he then was, in Ralph George McDonald v Parish of St Helier
[2005] JRC 074:
"...the States have
occupied the field. They have passed legislation in the knowledge of what the
established customary law provides. As with the English legislation, the States
have chosen not to provide simply for a statutory implied term against unfair
dismissal, leaving the courts to award damages on the usual contractual basis.
They have, as in England, decided to remove jurisdiction in such cases to a
specialist tribunal, to provide very short time limits, to provide a mechanism
for limiting the amount of compensation and to provide that certain employees
should be excluded from any remedy."
23. The Judicial Review Handbook (Sixth Edition) by
Michael Fordham QC was put before me.
This contained an extensive discussion on the distinction between
remedies in public law and private law and their applicability in judicial
review in general. Under the
heading relating to employment disputes at paragraph 34.5.4 under decisions
which have been held by the courts to be non-reviewable, the following is to be
found:
"34.5.4 Employment
(A) NON-REVIEWABLE. R v BBC, ex p Lavelle [1983] 1 WLR 23,
30 C (Woolf J: "An application for judicial review has not and should not
be extended to a pure employment situation"): McClaren v Home Office
[1990] ICR 824, 836B-838B: Wandsworth London Borough Council v A [2000] 1 WLR
1246, 1252G-H ("in the case of employment by a public body, that legal
status of the employer does not per se inject any element of public
law"); R (Evans) v University of Cambridge [2002] EWHC 1382 (Admin)
[2003] ELR 8 (despite University's public functions and statutory
underpinning, claimant lecturer's remedies for employment matters
statutory or contractual). [23] ("essentially an employment or
contractual dispute"); R v East Berkshire Health Authority, ex p Walsh
[1985] QB 152 (decision to dismiss nursing officer not reviewable); R v
Secretary of State for Employment, ex p Equal Opportunities Commission [1995] 1 AC 1, 25C-E (individual employee's claim a matter for the employment
tribunal); R v Secretary of State for the Home Department, ex p Moore [1994]
COD 67 (confirmation of the decision to dismiss a prison officer); R v Trent
Regional Health Authority ex p Jones The Times 19th June 1986 (decision
refusing to appoint a consultant surgeon); R v Derbyshire County Council, ex p
Noble [1990] ICR 808 (council dismissal of deputy police surgeon); R v Lord
Chancellor's Department, ex p Nangle [1992] 1 All ER 897 (disciplinary
decisions affecting civil servant working for Lord Chancellor's
Department); R v Crown Prosecution Service, ex P Hogg (1994) 6 Admin LR 778
(dismissal of barrister employed by the CPS); R (Arthurworry) v Haringey London
Borough Council [2001] EWHC Admin 698 (disciplinary proceedings not reviewable,
but court granting a remedy by reference to the implied duty of trust and
confidence between employer and employee); R (Tucker) v Director General of the
National Crime Squad [2003] EWCA Civ 2 at [35] ("clear line between
disciplinary issues where an officer has the right to public law safeguards
such as fairness, and operational or management decisions where the police are
entitled to run their own affairs without the interventions of the
courts"); Manning v Ramjohn [2011] UKPC 20 at [34] (doubting
Tucker)."
24. Under the following paragraph dealing with
reviewable decisions, these in general tended to relate to public office holders:
"27.3.7 Avoid arid and costly
procedural debate. Clark v
University of Lincolnshire and Humberside [2000] 1 WLR 1988 at [37] (Lord Woolf
MR: "The intention of the CPR is to harmonise procedures as far as
possible and to avoid barren procedural disputes which generate satellite
litigation") R (Heather) v Leonard Cheshire Foundation [2002] EWCA Civ 366 [2002] 2 All ER 936 at [38] (referring to "the old demarcation
disputes as to when judicial review was or was not appropriate under Order
53. Part 54 CPR is intended to
avoid any such disputes which are wholly unproductive"); R v Ministry of
Agriculture Fisheries and Food, ex p Lower Burytown Farms Ltd [1999] EuLR 129,
127F-138A (tensions in the law, now resolved by Rye).
27.3.8 Be flexible and permissive. Mercury Communications Ltd v Director
General of Telecommunications [1996] 1 WLR 48, 57D-E (Lord Slynn: "some
flexibility as to the use of different procedures is necessary. It has to be borne in mind that the
overriding question is whether the proceedings constitute an abuse of the
process of the court"): British Steel Plc v Commissioners for Customs
& Excise [1997] 2 All ER 366 (Saville LJ: "In this day and age it is
surely possible to devise procedures which avoid this form of satellite
litigation, while safeguarding both the private rights of individuals and
companies and the position and responsibilities of public authorities");
Roy v Kensington & Chelsea & Westminster Family Practitioner Committee
[1992] 1 AC 624, 655A (Lord Lowry: "unless the procedure adopted by the
moving party is ill suited to dispose of the question at issue, there is much
to be said in favour of the proposition that a court having jurisdiction ought
to let a case be heard rather than entertain a debate concerning the form of
the proceedings"); R (Heather) v Leonard Cheshire Foundation [2002] EWCA Civ 366 [2002] 2 All ER 936 at [38] (since a "bona fide contention is
being advanced (although incorrect) that LCF was performing a public function,
that is an appropriate issue to be brought to the court by way of judicial
review"), [39] ("We wish to make clear that the CPR provides a
framework which is sufficiently flexible to enable all the issues between the
parties to be determined...In view of the possibility of a misunderstanding
as to the scope of judicial review we draw attention to this and the powers of
transfer under Part 54"); Phonographic Performance Ltd v Department of
Trade and Industry [2004] EWHC 1795 (Ch) (not an abuse of process to bring
Francovich reparation claim for non-implementation of EU Directive by ordinary
claim form action), [49] ("essentially private law proceedings which can
and prima facie should be brought by an ordinary claim"); D v Home Office
[2005] EWCA Civ 38 [2006] 1 WLR 1003 at [105] (false imprisonment damages could
be claimed in the county court and did not need to be by judicial review only);
R (Garbet) v Circle 33 Housing Trust [2009] EWHC 3153 (Admin) at [89] (where
breach of duty to consult sheltered accommodation resident, arising from tenancy
agreement, Court granting the declaration that would have been granted in
private proceedings; not necessary therefore to consider further whether
"public law claim" or "private law claim").
27.3.9 Onus on the objector. Davy v Spelthorne Borough Council [1984] AC 262, 278F (Lord Wilberforce: "prima facie the rule applies that the
plaintiff may choose the court and the procedure which suits him best. The onus lies upon the defendant to show
that in doing so he is abusing the court's procedure"); R v East
Berkshire Health Authority, ex p Walsh [1985] QB 152, 173G ("A party
inviting the court to take this draconian step assumes a heavy
burden")."
25. In Evans v University of Cambridge
[2002] EWHC 1382 (Admin), the court at paragraph 10 of the judgment said:
"The demarcation between
public law disputes which the Administrative Court will entertain and private
law disputes which it will not is not always capable of precise
definition. The question to be
asked in the present case is whether the decision-makers were exercising public
law or private law functions. In
this regard, the prime focus is not so much on the status and nature of the
body making the decision as to the particular function that it is exercising. Where that function relates to
employment, cases that have come before the courts have usually fallen on the
private law side of the line for the no doubt obvious reason that there are
other remedies of a statutory or contractual nature."
26. That judgment went on to cite McLaren v The
Home Office [1990] IRLR 338 wherein the Court of Appeal, Woolf LJ said:
"2. There can, however, be situations where
an employee of a public body can seek judicial review and obtain a remedy which
would not be available to an employee in the private sector. This will arise where there exists some
disciplinary or other body established under the prerogative or by statute to
which the employer or the employee is entitled to require to refer disputes
affecting their relationship. The
procedure of judicial review can then be appropriate because it has always been
part of the role of the court in public law proceedings to supervise inferior
tribunals and the court in reviewing disciplinary proceedings is performing a
similar role. As long as the
'tribunal' or other body has a sufficient public law element, which
it almost invariably will have if the employer is the Crown and it is not
domestic or wholly informal its proceedings and determination can be an
appropriate subject for judicial review...
3. In addition if an employee of the Crown
or other public body is adversely affected by a decision of general application
by his employer, but he contends that the decision is flawed on what I loosely
describe as Wednesbury grounds, he can be entitled to challenge that decision
by way of judicial review..."
27. In R (Tucker) v Director General of the
National Crime Squad [2003] EWCA Civ 57, the Court of Appeal held:
"Is the decision amenable to
judicial review?
12 If the decision to end the
applicant's secondment is not amenable to judicial review, that is the end of
the matter. He has no remedy. Questions of fairness do not arise. Harrison J
however concluded that judicial review is available but went on to reject the
applicant's case on fairness. The judge's conclusion that judicial review is available
is challenged in a respondent's notice and it is convenient to deal with this
issue first.
13 The boundary between public law
and private law is not capable of precise definition, and whether a decision
has a sufficient public law element to justify the intervention of the
Administrative Court by judicial review is often as much a matter of feel, as
deciding whether any particular criteria are met. There are some cases that
fall at or near the boundary where the court rather than saying the claim is
not amenable to judicial review has expressed a reluctance to intervene in the
absence of very exceptional circumstances: see, e g R v British Broadcasting
Corpn, Ex p Lavelle [1983] ICR 99.
14 The starting point, as it seems
to me, is that there is no single test or criterion by which the question can
be determined. Woolf LJ said in R v Derbyshire County Council, Ex p Noble
[1990] ICR 808, 814:
"Unfortunately in my view
there is no universal test which will be applicable to all circumstances which
will indicate clearly and beyond peradventure as to when judicial review is or
is not available. It is a situation where the courts have, over the years, by
decisions in individual cases, indicated the approximate divide between those
cases which are appropriate to be dealt with by judicial review and those cases
which are suitably dealt with in ordinary civil proceedings."
15 Sir John Donaldson MR in R v
Panel on Take-overs and Mergers, Ex p Datafin plc [1987] QB 815, 838 having
referred to a number of different situations in which the court had asserted
its jurisdiction, said:
"In all the reports it is
possible to find enumerations of factors giving rise to the jurisdiction, but
it is a fatal error to regard the presence of all those factors as essential or
as being exclusive of other factors. Possibly the only essential elements are
what can be described as a public element, which can take many different forms,
and the exclusion from the jurisdiction of bodies whose sole source of power is
a consensual submission to its jurisdiction."
16 What are the crucial factors in
the present case? In Leech v Deputy Governor of Parkhurst Prison [1988] AC 533 Lord Oliver of Aylmerton said that the susceptibility of a decision to the
supervision of the courts must depend, in the ultimate analysis, upon the
nature and consequences of the decision and not upon the personality or
individual circumstances of the person called on to make the decision. I regard
this as a particularly important matter to keep in mind in the present case."
28. And then that Court later in the judgment went
on to say:
"24 In R (Hopley) v Liverpool
Health Authority [2002] EWHC 1723 (Admin) Pitchford J helpfully set out three
things that had to be identified when considering whether a public body with statutory
powers was exercising a public function amenable to judicial review or a
private function that was not. These are: (i) whether the defendant was a
public body exercising statutory powers; (ii) whether the function being
performed in the exercise of those powers was a public or a private one; and
(iii) whether the defendant was performing a public duty owed to the claimant
in the particular circumstances under consideration. That was a case where the
Liverpool Health Authority had refused to consent to payment to the claimant of
damages for personal injury by periodical payments under a with profits
structured settlement made under section 2 of the Damages Act 1996. He
concluded that the decision was not amenable to judicial review because the function
being performed by the health authority, as it affected the claimant, was a
private one.
25 Applying those criteria, with
which I agree, to the present case it seems to me clear that the third
criterion was not met. The deputy director general in sending the applicant
back to his force was not performing a public duty owed to him. The decision
taken in relation to the applicant was specific to him. Other officers were
dealt with differently. Some were arrested; some were sent back to be
disciplined; one was retained with different duties. But the applicant was
simply sent back. It was a decision tailor-made to him. It was taken because of
perceived deficiencies in his skills and conduct as an national crime squad
officer. It was an operational decision taken because it was decided that he
fell short of the particular requirements that were necessary to work in the
national crime squad. It had nothing to do with his private life and I reject
Mr Westgate's contention that article 8 of the European Convention on Human
Rights was engaged."
29. I have not set out all of the authorities
placed before me as I am only considering at this point whether the Applicant
has crossed the threshold to be entitled to bring a full judicial review
application.
30. This is an employment law matter and it arises
out of a contract of employment between the Applicant and the Respondent. The Applicant is not an office holder.
31. Taken at face value, as indeed I must in the
instant application because there is no contrary evidence before me, it appears
that the initial decision not to continue the Applicant's employment was
taken at the end of an unfair and truncated procedure in which the Applicant
was afforded no opportunity to prepare for the allegations to be made against
her, nor to explain her position.
32. Furthermore, again, it appears on the surface
of the information before me, that in reviewing the dismissal of the Applicant
it would have been difficult for the Respondent to conclude that the
Applicant's employment had been discontinued as a result of a proper and
fair process.
33. Naturally, as I have indicated above, these are
merely tentative observations based on my understanding of one side of the
factual contentions and without having heard the other side. The Respondent resists grant of leave on
the narrow but important point that this is simply not a public law matter but
rather is a matter of private employment or, alternatively, that the Respondent
has an alternate remedy.
34. I accept that the question of the jurisdiction
of this Court on judicial review in employment matters has been substantially
canvassed by reference to authority as set out above. It is apparent from a review of that
authority that it is not always easy to determine on which side of the line a
particular application falls. In
this case, the following seem to me to be relevant considerations:
(i)
This is
undoubtedly an employment matter in the sense that it deals with the
termination of the employment of an individual employed by the Respondent;
(ii) The Applicant is not an office holder;
(iii) The Applicant does not have an alternative
remedy for unfair dismissal by reason of the statutory restrictions imposed
under the Employment Law as she had not been employed for the statutory period;
(iv) Prima facie, and subject to the qualifications
I have set out above, the process of dismissing the Applicant was arguably
unfair.
(v) The Respondent is a public body.
35. The fact that the Respondent is a public law
body does not make this a public law case.
Had the Respondent not been a public law body and the actions complained
of been taken by a private company, for example, there would have been no
question of a judicial review.
36. In my judgment, there are not sufficient
features in this case or a sufficient public law element such as the Court
should assume jurisdiction to conduct a judicial review. No matter how the Respondent has behaved
towards the Applicant, the relationship between them does not possess the
public law element which is essential to justify an application for judicial
review.
37. In the circumstances, on that point I refuse
the Applicant's application for leave.
Authorities
Employment of States of Jersey
Employees (Jersey) Law 2005.
Royal Court Rules 2004 (as amended).
WE
(Jersey) Limited v Minister for the Environment [2022] JRC 044.
Warren
v Lieutenant-Governor [2017] (1) JLR 291.
Regina v East
Berkshire Health Authority, Ex parte Walsh [1985] QB 152
Regina (Shoesmith) v Ofsted and Others [2011] PTSR 1459.
Employment (Jersey) Law 2003.
Ralph
George McDonald v Parish of St Helier [2005] JRC 074.
The Judicial Review Handbook (Sixth
Edition) by Michael Fordham QC.
Evans v
University of Cambridge [2002] EWHC 1382 (Admin).
McLaren v The Home Office [1990] IRLR
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