This guide is maintained as a current resource for July 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Comprehensive guide to judicial review in the context of workplace discrimination decisions in England and Wales. Explains how judicial review differs from appeals, when it may apply, procedural requirements, grounds for challenge and practical considerations for claimants and employers.
In England and Wales, most workplace discrimination disputes are resolved through employment tribunals and, where appropriate, appeals to the Employment Appeal Tribunal (EAT). Judicial review is a separate legal mechanism that challenges the lawfulness of a decision or process rather than the merits of a discrimination finding itself. It operates in the Administrative Court of the High Court and can be used to scrutinise decisions by public bodies or those exercising public functions. This article explains how judicial review interacts with employment tribunal outcomes, when it might apply to workplace discrimination decisions and the practical steps and considerations involved.
What Is Judicial Review?
Judicial review is a form of legal challenge brought in the Administrative Court that examines whether a public authority's decision was made lawfully. It does not re‑decide the factual merits of the original decision (for example, whether discrimination occurred) but reviews whether the decision‑maker acted within its legal powers, followed fair procedures and did not act irrationally or unlawfully. If successful, the court may quash (set aside) the impugned decision and, in some cases, require the body to take the decision again lawfully.
Judicial review is available where no other adequate alternative remedy exists, or it is otherwise appropriate because all other avenues (such as internal appeals or statutory appeal rights) have been exhausted or are inadequate. It is typically described as a remedy of last resort.
Public Bodies and Amenability to Judicial Review
To be subject to judicial review, the decision must be made by a public authority or a body carrying out functions of a public nature. Public authorities include government departments, local councils, regulators and some statutory bodies. In limited circumstances, private bodies performing functions of public importance may also be reviewable if they exercise statutory powers or public functions.
Employment tribunals themselves are public bodies for many purposes, but they have their own appeal mechanism through the EAT. This means that most challenges to discrimination decisions should be pursued through the tribunal system rather than judicial review. Judicial review may still be available but only in narrow and specific circumstances discussed below.
Differences Between Appeals and Judicial Review
Understanding the distinction between an appeal and judicial review is fundamental:
- Appeal (EAT): Reviews points of law arising from an employment tribunal decision. It is the normal route to challenge an alleged legal error in a discrimination judgment such as incorrect application of statute or legal test. It focuses directly on the tribunal's decision.
- Judicial Review: Reviews the lawfulness of a decision‑making process rather than the merits of the decision. The court asks whether the decision‑maker acted legally, followed fair procedures and had the power to make the decision; it does not itself re‑weigh evidence or substitute its own view of whether discrimination occurred.
If a statutory appeal route exists, such as an appeal to the EAT on a point of law, judicial review is usually not available unless there are exceptional circumstances where the appeal does not provide an adequate remedy.
When Might Judicial Review Apply to Discrimination Decisions?
In the context of workplace discrimination, judicial review might be relevant in the following limited situations:
- Procedural Unfairness in Tribunal Process: If an employment tribunal failed to follow fair procedures during the discrimination hearing or breached fundamental principles of justice, a judicial review might challenge the tribunal's conduct rather than the outcome itself.
- Exhaustion of Remedies: Judicial review requires that all alternative remedies have been exhausted. If an error in an employment tribunal's process cannot be effectively challenged by appeal (for example, because no right of appeal exists for that particular issue), judicial review may be considered.
- Judicial Conduct or Administrative Failures: Instances of systemic procedural failure, such as failure to provide a fair hearing or administrative decisions affecting the conduct of the tribunal process, might be challenged by judicial review.
- Decisions by Public Bodies Outside the Tribunal: Judicial review may also challenge decisions affecting workplace discrimination cases outside the tribunal system, such as decisions by a public regulator, an internal public authority process that has no appeal, or delay by a public body in fulfilling its legal obligations.
In each case, the applicant must show a sufficient interest in the matter and that the grounds for judicial review (illegality, irrationality, procedural unfairness or breach of rights under the Human Rights Act 1998) are met.
Procedural Requirements for Judicial Review
Permission Stage
Before a full hearing, an applicant must obtain permission to proceed with a judicial review. The court assesses whether there is an arguable case on the lawfulness of the decision or process. If permission is not granted, the judicial review does not proceed to a substantive hearing.
Time Limits
Judicial review claims must be brought promptly, and in any event usually within three months of the date of the decision being challenged, though this can vary by context. Delays beyond this period are rarely permitted unless there is compelling justification.
Remedies Available
If judicial review succeeds, the Administrative Court may:
- Quash the unlawful decision;
- Order a mandatory or prohibiting remedy requiring or restraining action by the public body;
- Issue a declaration about the lawfulness of the decision.
The court does not substitute its own decision for that of the original decision‑maker; instead, the decision is remitted to be made lawfully.
Interaction With Employment Tribunal and Appeals
For routine workplace discrimination disputes, the employment tribunal and EAT appeal system are the appropriate routes of challenge. Tribunal decisions that are alleged to contain errors of law should be appealed to the EAT within the strict 42‑day appeal timeframe. Judicial review is not a substitute for this appeal process.
Judicial review of an employment tribunal's decision-making process is rare and typically limited to circumstances where the complaint relates to a procedural defect distinct from the substantive discrimination finding itself.
Practical Considerations
Complexity and Legal Advice
Judicial review is a complex and technical area of public law. Applicants are strongly encouraged to seek legal advice from solicitors experienced in public law and judicial review to assess whether their circumstances meet the threshold for court intervention.
Costs and Resources
Judicial review can be costly and time‑consuming. Legal representation, preparation of detailed grounds, and permission stages all add to expense. Applicants should consider the likely costs alongside the potential benefits, particularly where alternative routes (such as appeal) are available.
Timing and Strategic Choices
Because strict time limits apply and alternative remedies must usually be exhausted first, potential claimants should act promptly. Strategic decisions about whether to appeal to the EAT or pursue judicial review should be discussed with a legal adviser early in the process.
Common Questions
Can I challenge an employment tribunal's discrimination decision by judicial review?
Usually no. The correct route for challenging alleged legal errors in tribunal discrimination decisions is an appeal to the EAT. Judicial review might be available only if the process was unlawful and no adequate appeal remedy exists.
What is the main difference between appeal and judicial review?
An appeal to the EAT reassesses whether the tribunal applied the law correctly, while judicial review examines whether a decision‑making process was lawful and fair, not whether the ultimate outcome was right.
What remedies can judicial review provide?
If successful, judicial review can quash the decision and require the public body to reconsider it lawfully, or issue a declaration about the decision's unlawfulness. It cannot directly overturn factual determinations in a discrimination case.
Final Thoughts
Judicial review is a public law mechanism that can challenge the lawfulness of decisions or processes affecting workplace discrimination matters in England and Wales, but it is not a routine route for challenging employment tribunal judgments. Its primary focus is on procedural integrity and legality rather than the merits of a discrimination finding. For most discrimination claimants and respondents, the appropriate challenge to an erroneous tribunal decision will be through the Employment Appeal Tribunal on a point of law. Judicial review may be an option only in exceptional circumstances involving unlawful procedure or where no adequate appeal exists. Understanding the distinctions, strict time limits and procedural requirements is essential when considering judicial review in the context of workplace discrimination law.
