Aggrieved Public Sector Workers and Judicial Review
| DOI | http://doi.org/10.1111/j.1468-2230.1991.tb02642.x |
| Author | Hazel Carty |
| Published date | 01 January 1991 |
| Date | 01 January 1991 |
January
I99
I1
Aggrieved Public Sector Workers atid Judicial Review
Attention
will
have to be addressed above all to two questions.22 The first
concerns the role of intention.
At
the moment intention is ostensibly central to these
constructive trusts,
in
the shape of the demand for an agreement. There is certainly
a case for attending to intention
so
as to respect the autonomy
of
those people who
wish to regulate their own affairs. But there still has to be a rule for those who
do not give their minds to the matter. At the moment the rule is ostensibly that
the paper title prevails
-
ie
the house stays
with
the
man.
At
least some judges
seem to regard
this
as unsatisfactory, though, because they commonly invent the
necessary agreement, rather than genuinely discovering or inferring one,
so
as
in
reality to predicate shared ownership upon certain other kinds of facts. It would
be better to remove the requirement of intention and allow these facts to operate
in their own right. The other question would then be what kinds of facts should
entail shared ownership
in
this way. For the adherents of referability the essential
matter seems to be the spending (and
so
the having) of money, whilst other judges
evidently have some other qualification in mind, probably centred on playing one’s
part in the overall business of home-making. The former approach seems invidious:
‘to those that have shall be given
.
. .
.’
The latter approach seems preferable, as
reflecting the nature of the family enterprise:
a
notion, we are told, that
is
to become
big in the nineties. Other than the fact that their Lordships eschewed
it
twenty years
ago,Z3 in
Pettitt
v
PettittZ4
and
Gissing
v
Gissing,*S
is there any reason
why
this
approach should not become the law?
Aggrieved Public Sector Workers and Judicial Review
Hazel
Carty
*
Introduction
The last
10
years have seen an increasing number of cases where a worker has
attempted
to
question his employer’s decision to dismiss or discipline him. At issue
is
a method of forcing the employer
-
either by way of injunction or judicial review
-
to think again, rather than accepting the dismissal as a
fait
accompli.
It appears
that dissatisfaction with the remedies available under the statutory scheme of unfair
dismissal‘
is
part of the impetus behind this growing quest for alternative relief.
Perceived initially as offering
‘job
security,’
in
that the remedy of reemployment
was stated to be the prime remedy for a successful applicant, statutory dismissal
rights have proved inadequate for those who wish to complain of arbitrary dismissals
or dismissals
in
breach of procedure. This
is
because re-employment is rarely awarded
and even
if it
is, the employer can avoid taking the worker back by paying a higher
level of compensation. At the same time, the ever-widening scope of administrative
22
23
24
See J.M. Eekelaar, 119871 Conv 93.
In
Murphy
v
Bretiiwmd
DC
(19901
3
WLR
414
the House has overruled
its
own decision in
Ams
v
Merim
LBC
119781 AC 728.
[
19701 AC 770.
25
119711 AC 886.
*Lecturer in Law, Univcrsity
of
Manchester.
I
See
Part
V
of
Eniployment Protcction (Consolidation) Act 1978.
129
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