Dunbar & Ors, R (on the application of) v Hampshire Fire & Rescue Service

MR JUSTICE ELIAS: The claimants in this case claim judicial review of the decision of the Hampshire Fire and Rescue Service on or about 12th August 2003 to refuse to reinstate them in their posts as fire fighters despite their successful appeal against their dismissals to the Secretary of State.

The claimants are or were all fire fighters employed by the Hampshire Fire and Rescue Service ("the defendant"). The service is a fire brigade maintained by the area fire authority, Hampshire County Council, for fire fighting purposes.

On 14th April 1999 the claimants, together with a further fire fighter, Mr Burrows, were suspended from duty. They were issued with a notice of investigation under regulation 7 of the Fire Service (Discipline) Regulations 1985. On about 4th November 1999 each of the claimants and Mr Burrows were served with a charge sheet pursuant to regulation 8 which listed various alleged disciplinary offences dating back to 1990.

On or around 7th November 1999 the claimants and Mr Burrows were advised by the defendant that the charges served on 4th November were being withdrawn. At the same time they were served with new charges. On 6th January 2000 there was a further revised charge sheet issued. These alleged a number of offences involving serious allegations of harassment, bullying and insubordination.

On 10th January 2000 the claimants and Mr Burrows were summoned to appear at a disciplinary hearing commencing on 17th January 2000 before the chief fire officer. That hearing was pursuant to regulation 9. On 29th February the claimants and Mr Burrows were informed by the chief fire officer that he found that the charges against them had been proved. He imposed various disciplinary awards under regulation 11 in respect of each of the charges. These included the dismissal of the claimants and of Mr Burrows from the defendant's employment.

There was an appeal against the findings of guilt and the awards of dismissal by each of these individuals to the council's disciplinary tribunal pursuant to regulation 12.

That tribunal took place on various dates, amounting to some 12 or 13 days in all, between 8th May 2000 and 21st September 2000. On 22nd September the claimants were informed that one of the charges had not been proven. However, the further charge against them, and the single charge remaining against Mr Burrows, had been upheld. In relation to this charge the disciplinary tribunal substituted the previous award of the dismissal of the claimants with the award of:

The award in respect of Mr Burrows was subsequently changed from dismissal to the maximum fine permitted under the regulations and a final warning. He then returned to employment with the defendants.

The claimants did not resign and they were dismissed with effect from 5th January 2001. The material terms of this letter were as follows:

In October 2000, in accordance with part 4 of the regulations, each of the claimants submitted an appeal to the Secretary of State against both the finding of guilt and against the particular disciplinary sanction. Thereafter written grounds of appeal were provided and the defendants responded with their own submissions.

Pending the hearing of that appeal, in March 2001 the claimants lodged applications with the Employment Tribunal claiming unfair dismissal. Those applications were stayed with the agreement of the defendants pending the decision of the Secretary of State. It was made plain in those originating applications that they were being lodged so as to preserve the position in the result that the appeal to the Secretary of State failed. In any event, those applications could, of course, only proceed if the Secretary of State dismissed the appeals, because if he allowed them and thereby reinstated the claimants, then they would not have been dismissed at all.

There is then a significant delay pending the resolution of the appeal. Finally, on 12th June 2003, the Secretary of State allowed the claimants' appeal against both the finding and the awards. An order to this effect, under the cover of a letter from the office of the Deputy Prime Minister, was sent to the claimants on 13th June 2003.

There was then some correspondence between the parties where the defendants indicated that they were considering their position and asked the claimants for any proposals which they wished to make.

On 9th July 2003 the defendants wrote to the claimants informing them that they were considering a judicial review of the Secretary of State's decision. In fact they did not do that. The letter further stated that the dismissals remained in force and had not been withdrawn. Again the claimants were invited to put forward their own proposals.

On 25th July 2003 the first, second and fourth claimants wrote to the defendant informing them that they were ready and willing to return to work and they asked for proposals about where and when they should report for work. The third claimant meanwhile had reached his retirement date and he wrote asking for his service record to be amended to reflect the Secretary of State's decision.

On 12th August 2003 the defendants wrote to each of the claimants informing them that they were still considering a judicial review. In relation to the first, second and fourth defendants the letter also stated:

It was these letters which prompted the application for judicial review.

Members of the fire brigade are subject to contracts of employment, but superimposed on those contracts is a regulatory framework. The fire authorities themselves are statutory bodies and they derive their functions from the Fire Service Act 1947. They have only such powers are conferred upon them by statute and are subject to such limitations as the legislation imposes. As Miss Laing for the Secretary of State points out, the structure of the Act is that the Secretary of State has certain overall strategic functions to ensure the efficient and consistent operation of the service. Section 17 reflects this pattern.

Subsection (1) provides as follows:

Subsection (2) provides that:

The 1985 Regulations, to which I have made reference, have been made pursuant to section 17. In addition, guidance has been issued dealing with certain matters not covered in the body of the Regulations themselves. They are intended to constitute a comprehensive code relating to discipline in the brigade and to ensure a consistency in its application.

Paragraph 1 of the guidance, inter alia_, says this:

The Regulations define the offences against discipline: (reg 4 and the schedule). The schedule identifies some 15 distinct offences. It is difficult to imagine any alleged misconduct not falling within one or other of those offences. The regulations also describe the rank of the officer who must investigate allegations of indiscipline (reg 5); the circumstances in which a summary dismissal can be effected (reg 6); the procedure which is involved in investigating allegations of breach of discipline (regs 7 and 8); the form of the hearing (reg 9); and the potential penalties that can be imposed, referred to as disciplinary awards (reg 11). They also provide for an internal appeal hearing which is either to a Disciplinary Tribunal or an Appeal Committee, depending on the identity of the first instance decision maker and stipulate that, save in certain limited case, any appeal should be by way of a rehearing (regs 12 and 13). In each case where there is an appeal, the appellate tribunal may allow the appeal, confirm the award, or vary the award by the imposition of the some other award (regs 12(5) and 13(3)).

There is a further right of appeal against more serious sanctions to the Secretary of State. The relevant provisions dealing with that are regulations 15 to 18. Regulation 15 provides for the right of appeal where the sanction imposed is either dismissal or a requirement to resign from the brigade, or a reduction in rank. The Regulations set out the procedure for appealing and confer on the Secretary of State a range of powers which are designed to enable him to deal with the issue in dispute in a most efficacious way.

Regulation 18, insofar as it is material, is as follows:

The claimants' case, supported by the Secretary of State, is very simple. They submit that here there are regulations made pursuant to statute, that the regulations are clear and unambiguous, and that in the circumstances the defendant authority is obliged to give effect to the Secretary of State's determination. They submit that the decision to dismiss taken by the Authority cannot stand in the light of the decision of the Secretary of State. Regulation 18 provides in terms that his decision is to be substituted for the earlier decision of the Disciplinary Tribunal. Accordingly, there is no dismissal for disciplinary reasons and it is not open to the authority to contend otherwise. That would be to override the will of Parliament. Moreover, they contend that since the issue concerns the interpretation and effect of statutory provisions, it is plainly an appropriate matter for judicial review.

Mr Langstaff QC, for the claimants, accepts that in general the employment rights of employees of public bodies are not a matter of public law: see, for example, R v Derbyshire County Court ex parte Noble [1990] ICR 808 and R v Berkshire Health Authority ex parte Walsh [1984] 3 WLR 818. But here he contends that the claimants are not enforcing their private law rights, but are relying upon the protection afforded to them by the statutory scheme. Since the allegation is that the Fire Authority has exceeded its powers and has acted ultra vires in seeking to rely upon a dismissal which has been overturned by the Secretary of State, this is, he submits, classic judicial review territory.

In my view there can be no doubt whatsoever that where the issue is the question of whether an employer is acting lawfully and in accordance with statutory rights conferred upon employees this is clearly an appropriate case for judicial review. Authority is hardly required for that proposition, but if it is, it is found, for example, in the judgment of Lord Donaldson MR in the Berkshire case, to which I have made reference, at page 165.

Mr Jones QC, for the defendant, accepts much of the submission made on behalf of the claimants and the Secretary of State. He accepts that if the issue is simply one which engages the application of the statutory provisions, then judicial review is indeed the appropriate procedure. But he says that is not a simple case where the statutory procedure alone is involved. The case is more complex than that. He reminds me that employers have to have regard to their statutory obligation in section 1 of the 1947 Act which, put broadly, requires them to provide an efficient fire brigade, and also its obligation to its staff, reinforced by Article 8 of the European Convention, to respect their private life and to ensure that they are not subject to improper harassment and bullying.

He referred me to certain witness statements from the Deputy Chief Fire Officer and the Services Personnel Manager in which they refer to the fact that there was much evidence of other harassment and bullying that was not the subject of any formal charges. Mr Jones submits that it was the genuine and deeply held view of the management of the service that these anti-authoritarian and damaging attitudes had been corrosive of morale and had significantly upset a number of other employers of the defendant, some of whom, I am told, indicated that they would not be willing to remain in the service of the brigade if these claimants were to be re-instated.

He further contends that, whatever the reasons originally given for the dismissal, it is always open to an Employment Tribunal to find that there is a separate and distinct reason, if the reason given by the employer did not correctly identify the true reason. He relies upon the well-known observations of Cairns LJ in Abernethy v Mott, Hay and Anderson [1994] IRLR 213, where he said this:

Mr Jones suggests that the Regulations are not in fact exhaustive of the powers to dismiss for misconduct and he asserts that there may be cases, admittedly exceptional but of which this is one, where the duties of the employer will justify a dismissal even for matters relating to conduct and even if that means refusing to give effect to the decision of the Secretary of State. He says that under unfair dismissal law the employer can justify dismissal for "some other substantial reason" and that can include the difficulties that might arise if employees are retained in employment in circumstances where there are significant clashes between different groups of people. The employer must be entitled to resolve the matter by effecting a dismissal if necessary and in certain circumstances such a dismissal would be fair. In this case he says that the brigade would wish to argue before a tribunal that there is a good reason for dismissal relating to the conduct of these claimants and their relationship with other employees.

Accordingly, he submits that whether or not there should be any remedy arising out of the dismissal in this case, it is classically a matter for an Employment Tribunal. The claimants can, through the tribunal, secure re-engagement or reinstatement if the tribunal thinks that proper. This is, therefore, an appropriate alternative mechanism which ought to lead the court to conclude that it is not an appropriate case for judicial review.

I reject Mr Jones's submissions. I accept that the Regulations are not exhaustive of all dismissals. Clearly they do not preclude an employer dismissing an employee for non-disciplinary reasons and there is a separate contractual procedure for such dismissals. Possibly there could be matters relating to conduct which do not fall within the terms of the Regulations, but that is, perhaps, more problematic. In exceptional cases no doubt there could be dismissals for reasons which might constitute another substantial reason within the meaning of unfair dismissal law and thereby justify any complaint of unfair dismissal.

But where the substance of the complaint is that there has been breach of the disciplinary provisions which fall within the schedule of the Regulations, then it is plain, in my judgment, that the Authority can only lawfully dismiss in accordance with the Regulations and after strict compliance with its terms. Once the basis of the alleged misconduct falls within the terms of the Regulations they are engaged and they fetter the employer's power to dismiss.

That is the short answer to this case, but there is an additional problem facing the defendant. Even if the argument is right and the defendant could in principle dismiss in some cases for conduct outside the statutory scheme, in my view it would be necessary for them to have made a formal and distinct dismissal. In this case that never happened.

The defendant purported to dismiss for disciplinary reasons. They initiated the disciplinary process and the cases have gone through the relevant statutory procedures. In my view they cannot now contend that the reason for those very dismissals was a non-disciplinary reason. They have not sought at any stage to accept the decision of the Secretary of State and then effect a fresh and distinct dismissal for some other independent reason. For the reasons I have given I very much doubt whether there is any scope for doing so once the reason relates to conduct.

The effect of the stance now adopted by the defendant is that they are simply refusing to give effect to the ruling of the Secretary of State. In doing so they are frustrating the will of Parliament. I am satisfied that in acting in that way the defendant is acting ultra vires. Nor, in these circumstances, would an unfair dismissal complaint be a suitable alternative remedy. That complaint is premised on there having been a dismissal. Here the point of these proceedings is to enable the complainants to establish that there has not.

Moreover, in unfair dismissal proceedings there is not an automatic right to re-instatement or re-engagement. It is a discretionary remedy to be decided by the tribunal. Here the effect of quashing the decision to dismiss in accordance with the ruling of the Secretary of State is to re-instate these claimants. If it were clear that the reason for dismissal was a non-disciplinary one, then I accept that there would be considerable force in the submission of Mr Jones that this would not be an appropriate case for judicial review, but the regulations would not then be in play. That is not this situation.

There is one further matter with which I need briefly to deal. In the course of argument the defendant placed some reliance on Article 8 of the European Convention. As I understand it the submission is that those employees who object to the continued employment of these claimants will suffer an infringement of their private life if the employees are re-instated. How the rights of employees not before the court can properly affect the construction of the disciplinary procedures between the employer and employee I confess I do not understand. The employees plainly do not have a right under Article 8 to require the employer to dismiss other employees with whom they are unwilling to work. If those other employees have committed disciplinary acts justifying a dismissal that is a different matter. But Article 8 adds nothing to the argument and, if anything, obscures it.

I make two final observations. First, it is quite unacceptable that the Secretary of State should have taken the best part of two and a half years to determine this appeal, particularly given that it was not a case where an enquiry was required. It is wrong that the parties, both claimants and defendants, should be left in such uncertainty about the outcome for so long. Moreover, it will often be difficult for employers to accept back into employment employees with whom they have crossed swords in the disciplinary process. The problems are necessarily compounded where there are delays of this nature.

Second, I accept that the employers have acted in good faith. They are deeply troubled at the thought of taking back employees whom they consider have had a pernicious influence on the service, but the statutory provisions give the last word on that to the Secretary of State and he has taken a different view. Had they wished to challenge that view they could only have done so by taking proceedings for judicial review, assuming that there was some proper legal basis for doing so, but they have not done that. It follows that, however difficult it may be, they must loyally accept the ruling of the Secretary of State and give effect to it. Mr Jones accepts that this means that the claimants are entitled to such back pay as is due to them and in the case of Mr Ross, the third claimant, he is entitled to have his service record amended.

For the reasons have I given these claims succeed.

MR LANGSTAFF: My Lord, the relief sought is set out at page 3.

MR JUSTICE ELIAS: Page 3 of what?

MR LANGSTAFF: Of the main bundle.

MR JUSTICE ELIAS: Sorry, declaration that the reported dismissal is void and a nullity?

MR LANGSTAFF: Yes. So that in the case of the first, second and fourth claimants they remain employed by the defendants. And (b) in the case of the third defendant his employment record is amended to reflect his successful appeal to the Secretary of State. (2) An order quashing the decisions of 12th August 2003. (3) A mandatory order directing the defendants to -- the word "resign" is used there, but the sense is clear -- the first, second, and fourth claimants' employment with the brigade as fire fighters, (b) treated the employment of the third claimant as continuing from the date of his retirement on 2nd October 2002.

And (4) should be arrears of salary in each case. I can tell your Lordship that, although that remains a matter of calculation, about which none of us anticipate there will be any difficulty, it will obviously depend on the individual tax rates and so on and the calculation made by the defendants' pay role. But it has been agreed that that should come together with interest calculated at 9.79 per cent on the totality. That represents half the special investment account over the relevant period.

MR JUSTICE ELIAS: Right. Mr Jones, do you have anything to say about that? The relief follows really doesn't it.

MR JONES: Absolutely. There is no dispute on the relief set out on page 3 and 4, and no dispute on what my learned friend says about the sum.

MR LANGSTAFF: Then the question of costs. We ask for costs, to be subject to a detailed assessment if not agreed, to be paid by the defendants.

MR JUSTICE ELIAS: No objection?

MR JONES: Well, my Lord, obviously the fire service is rather upset by your Lordship's ruling. It had in mind that your Lordship might make that. All I can say is that they acted throughout in good faith. They do feel slightly hard done by.

MR JUSTICE ELIAS: I understand that, but, I am sorry, costs must follow the event.

MR LANGSTAFF: Those are our applications.

MR JONES: My Lord, there are two other matters. We bear in mind the delay that has occurred and that has, of course, increased the amount that we have to pay, both in terms of salary and in terms of interest. We are giving some thought as to whether or not a suitable claim should be made in whatever form. I will just flag that up now.

MR JUSTICE ELIAS: That is between you and the Secretary of State.

MR LANGSTAFF: Absolutely. I just mention it. The other matter, my Lord, is the question of appeal. Again, those sitting behind me are troubled by your Lordship's ruling as will be apparent to you.

MR JUSTICE ELIAS: I am sorry. I have taken a very clear view of it on the law. I appreciate their disappointment. I appreciate their difficulties. But I have no real doubt about the legal answer I am afraid. You will have to persuade the Court of Appeal that I have got it wrong. Thank you all.