Vardon v Promotion and Grievance Appeals Tribunal (No 2)

The case of Vardon v Promotion and Grievance Appeals Tribunal (No 2) involved the Chief Executive of the Department for Families and Communities (the plaintiff) challenging a decision made by the Promotion and Grievance Appeals Tribunal (the Tribunal) in relation to the suspension of an employee (the second defendant). The Tribunal had directed the Chief Executive to suspend the second defendant with pay, which the plaintiff contended exceeded the Tribunal's jurisdiction and was invalid. The primary issue before the court was whether the Tribunal had the jurisdiction under section 64(4) of the Public Sector Management Act 1995 to issue a direction that effectively substituted its decision for that of the Chief Executive. Additionally, the court had to determine whether the Tribunal had considered an irrelevant factor by presuming the innocence of the second defendant.

The court found that the Tribunal did not have the jurisdiction to substitute its decision for that of the Chief Executive. Under section 64(4) of the Act, the Tribunal's power is limited to affirming the decision or giving directions necessary or desirable to redress the grievance. The direction to suspend the second defendant with pay amounted to substituting the Tribunal's decision for that of the Chief Executive, which was beyond the Tribunal's statutory powers. Furthermore, the court held that the Tribunal's consideration of the presumption of innocence as an immaterial factor led to an error of law, as it misapplied the concept of the presumption of innocence. The presumption of innocence does not preclude the possibility of suspension without remuneration; rather, it is a principle that affects the burden of proof in a criminal trial.

As a result of these errors, the court allowed the application for judicial review, quashed the Tribunal's decision, and remitted the matter back to the Tribunal for reconsideration in accordance with the law. The court emphasised that the Tribunal should not substitute its discretion for that of the Chief Executive and should not regard the presumption of innocence as an absolute bar to suspension without remuneration.