Judicial review, not unfair dismissal? Why Olly Robbins has chosen the public law route

What judicial review is

Judicial review is the mechanism by which the courts supervise the exercise of public power. It is concerned with the legality of decisions taken by public bodies, rather than whether those decisions were right, fair in a general sense, or commercially sensible.

A court considering a judicial review typically asks questions such as:

• Did the decision-maker have the legal power to make the decision?
• Was the correct procedure followed?
• Was the decision irrational or unreasonable in public law terms?
• Were relevant considerations taken into account?
• Was the decision affected by procedural unfairness?

The court is not usually determining whether a claimant was treated badly as an employee. Rather, it is determining whether a public authority acted lawfully.

According to news reports, Sir Olly’s challenge argues that the Prime Minister had “no statutory authority” to dismiss him from his position as head of the Diplomatic Service, that no fair procedure was followed, and that the reasons given for his dismissal were irrational. Those are classic public law grounds for judicial review.

Why not bring an Employment Tribunal claim?

On the facts reported, there are several reasons why judicial review may be the more attractive route.

1. The core complaint appears to be about power, not employment rights

The central argument reported is not that Sir Olly was unfairly dismissed in the ordinary employment law sense. Rather, he contends that the Prime Minister lacked the authority to remove him from office and that the process adopted was unlawful.

Those issues are naturally suited to judicial review because they concern the lawful exercise of governmental power.

An Employment Tribunal would generally be concerned with statutory employment rights and would not ordinarily determine wider constitutional questions about the extent of a Prime Minister’s powers.

2. A judicial review can potentially quash the decision

The remedy sought in judicial review is often a quashing order.

Sir Olly is apparently asking the court to determine that the Prime Minister’s decisions were unlawful and to quash them.

That is fundamentally different from most employment claims. An Employment Tribunal usually awards compensation. Reinstatement is theoretically available but is rarely ordered and even more rarely implemented in practice.

If Sir Olly’s objective is to clear his name and establish that the dismissal was unlawful, judicial review offers a remedy that an Employment Tribunal may struggle to provide.

3. The case raises constitutional questions

The reported claim goes beyond the circumstances of one individual’s dismissal. It potentially raises questions about:

• The constitutional position of senior civil servants.
• The governance of the Diplomatic Service.
• The relationship between ministers and independent vetting processes.
• The limits of executive power.

The FDA union’s reported position is that the vetting system operates independently of ministers and that Sir Olly was under an obligation not to disclose aspects of that process.

Those are public law issues of wider governmental significance rather than ordinary workplace disputes.

4. Reputation may matter more than compensation

For many senior public officials, the principal concern is not financial compensation.

Reports state that Sir Olly contends he was made a scapegoat and that his dismissal was based on a misunderstanding of the vetting process.

A successful judicial review would provide a public determination that the decision-making process was unlawful. That may be more valuable than compensation alone where professional reputation and public service legacy are at stake.

5. Lack of qualifying service

To bring an ordinary unfair dismissal claim, an employee must generally have two years’ continuous service. Based on the information presently available, Sir Olly does not appear to have accrued the requisite qualifying service, having only held the post between 2025 and 2026. Although there are limited statutory exceptions to the qualifying service requirement, at this early stage and with the lack of documentation available, it’s hard to comment on whether such exceptions could apply. In a high-profile development under the Employment Rights Act 2025, the current two-year qualifying period for protection from unfair dismissal will be reduced to six months, but this change is not due to be implemented until 1 January 2027.

Not without precedent: the Sharon Shoesmith case

Although judicial review is not the route most people associate with dismissal disputes, there is precedent for senior public office holders using public law to challenge their removal.

One of the best-known examples is Sharon Shoesmith, the former Director of Children’s Services at Haringey Council. Following the Baby P tragedy, she was removed from office after intervention by then Children’s Secretary Ed Balls. Rather than relying solely on employment law remedies, she pursued judicial review proceedings against both the Secretary of State and the council.

In 2011, the Court of Appeal held that both the Secretary of State and Haringey Council had acted unlawfully because she had been denied a fair opportunity to put her case before the decision to remove her was taken. The court found that she had been denied the basic procedural fairness required by public law and described the process as unlawful. This shows that courts are prepared, in appropriate cases, to intervene where senior public officials are removed from office without procedural fairness.

The Court of Appeal was highly critical of the way Shoesmith had been treated, describing her as having been made “a public sacrifice” in the face of political and public pressure. As stated above, public declarations of wrongdoing of this sort if successful will be very attractive to Mr Robbins.