The High Court has refused the claim of an Army doctor, supported by the British Medical Association, for judicial review of the Defence Secretary’s decision not to bring section 192 of the Employment Rights Act 1996 into force. Section 192, if implemented, would enable service personnel to bring claims in the Employment Tribunal for various causes of action including unfair dismissal.
In the vast majority of cases, an employee with the requisite qualifying period of service with an employer will be eligible to bring a claim of unfair dismissal in the Employment Tribunal. There are however a limited number of professions in which an Employment Tribunal claim for unfair dismissal is barred: police officers (unless the dismissal relates to health and safety) are one, members of the armed forces are another.
As access to the Employment Tribunal is limited for service members, internal procedures have for many years been used to deal with complaints of personnel within the armed forces. Since 2008 complaints have been dealt with through a service complaint system (“SC”), the speed and efficiency of which has been criticised by the Ombudsman of the SC repeatedly.
In January 2021, after writing to the Defence Secretary requesting s.192 ERA be implemented, the claimant was informed that the Government were not going to implement the section at the current time and that the immediate priority was to improve the SC system. The claimant sought judicial review of this decision on the basis that the Defence Secretary had failed to comply with the duty to consider the commencement of s.192 and that they had acted irrationally.
In their decision to reject the request for judicial review, the court stated that any review should apply a “light touch” in its approach, and, in effect, the court would intervene only in the event that the defendant Defence Secretary’s judgment was so unreasonable that no reasonable authority acting reasonably could have made it.
Looking back at previous case law, the court found that where a minister is given the discretionary power to implement a statutory provision at a later date, this does not create a legal duty to actually implement the provision: the minister must merely keep the decision under review and consider it from time to time in good faith. The defendant in this case had decided that further consideration of commencing S.192 ERA should take place after the changes to the SC procedure had been implemented. The defendant had complied with their duty and had not acted irrationally.
The result of this decision is that, for the time being and until further judicial review, service personnel are still limited in their access to the Employment Tribunal and will need to continue to address their complaints to the internal SC procedure.
This blog was written by Michael Green, Trainee Solicitor at didlaw.
