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Legal Update

Can You Judicially Review An Employment Matter?

7 May 2007
Mayer Brown JSM Legal Update


Public sector bodies are understandably nervous of being the subject of judicial reviews (or "being JR'd"). A recent case involving the Vocational Training Council appeared to extend the scope of a JR to include certain aspects of employment. This case has just been overturned (quite rightly) by the Court of Appeal.

Full Update

(a) Judicial Review

There are three grounds upon which the performance of public bodies may be subject to judicial review by the courts:

1. illegality,
2. irrationality, and
3. procedural impropriety.

A fourth ground is sometimes introduced, namely, procedural mishap.

At its most basic level, a judicial review is available where there is alleged illegality, irrationality or procedural impropriety/mishap by a public body in its exercise of a public function.
Judicial review will not be granted where there is an alternative remedy. Nor will it be granted where the question is merely academic or hypothetical (unless it is clearly in the public interest to do so). So, judicial review is not available for private acts carried out by public bodies.

Whether a public body is carrying out public or private acts depends on whether the decision-making body has exercised a power in the course of its public functions.

(b) Application to Employment Related Disputes

Employment contracts are private law matters. This is the case whether the employer is the Government or a public sector body. This established principal was thrown into a degree of doubt recently when the High Court determined that a lecturer employed by VTC (which is a statutory body) could JR the VTC in relation to its disciplinary proceedings (Chik Po Yee v Vocational Training Council and Another).

Thankfully the Court of Appeal has now recovered the position by ruling that this case should not ever have been subject to JR (see the cases set out in (c) below)). They have confirmed that the dismissal of Ms Chik by the VTC, even involving a disciplinary procedure, "is a purely private law matter".

As a side issue (an interesting nugget if you will) the Court of Appeal also makes reference to "an implied term (in the contract of employment) that any disciplinary proceedings would follow a fair procedure". This could be the glimmerings of an extension of the implied duty of good faith (see Implied Trust And Confidence: An Update (10 Nov 2003) amongst others).

(c) Prior Cases Concerning JR and Employees

Since 1998 there have been a number of cases in which employees have sought (and failed) to JR their employers due to actions taken against them in the employment context. Several of these are set out below.

* The Court in Shau Lin Chi v Secretary for the Civil Service decided that an employment dispute as to an applicant's terms of service in the Prison Service was not subject to judicial review. The Court held that judicial review should not be extended to a purely employment situation. Therefore, employment by a public authority per se does not inject an element of public law.

* In Sit Ka Yin, Priscilla v Equal Opportunities Commission the decision by the EOC to terminate an employee's employment was not amenable to judicial review. 

* Fung Yiu Bun v Comr of Police held that the decision to terminate the contract of employment of a police officer (a civil servant) did not involve any public function and should therefore not be subject to judicial review. This concept was similarly applied in Chan Tak Keung v Comr of Police which held that although a police officer is a civil servant, the decision not to promote him involves no public element and was not subject to judicial review.

* Cheng Chung Ngai v Hospital Authority concerned a decision by the Hospital Authority to dismiss an employee. It was held that judicial review was not appropriate to impugn the decision of a disciplinary tribunal set up by an employer for the purposes of considering the acts of an employee. Such a tribunal did not exercise any public function. The nature of any decision made by it has consequences only for the employee and has no broader public consequences. Therefore, if the decision of such a tribunal resulted in a wrongful dismissal, the remedy should be by way of the common law, or through the Labour Tribunal for damages. 

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