“Sheridan v Glasgow” and the Outer House’s Re-Drawing of the Supervisory Boundary for Pre-Contractual Employment Decisions

1. Introduction

The decision of Lord Young in Petition of Thomas Sheridan for Judicial Review ([2025] CSOH 54) tackles the perennial tension between public-law control of public bodies and the private-law autonomy of employment relations. Thomas Sheridan, a former MSP and qualified social worker, challenged Glasgow City Council’s decision to refuse to consider him for social-work posts because of a 2010 perjury conviction. He sought judicial review (JR) seeking declarator of illegality and reduction of the Council’s “ban”.

While the petition raised three substantive grounds—irrationality, lack of reasons and fettering of discretion—the judgment turns, decisively, on a threshold question: is a local authority’s refusal to employ (or even to interview) a candidate a decision amenable to the Court of Session’s supervisory jurisdiction?

Answering “No”, Lord Young dismissed the petition as incompetent. In doing so he crystallised a principle that had lurked in the case-law since West v Secretary of State for Scotland (1992): pre-contractual employment decisions—even by public authorities—are matters for private law, not public-law review, unless a specific statutory scheme imposes public-law duties.

2. Summary of the Judgment

• Competency (Threshold) – The petition was incompetent. The refusal to employ flowed from the Council’s general statutory power to appoint staff (Local Government (Scotland) Act 1973, s.64) and occurred in the private-law sphere of prospective employment; supervisory review therefore lay outwith the Court’s remit.
• Merits (Obiter) – Even if competent, the petition would have failed:
  • Irrationality: The Council’s concern about reputational risk and suitability was plainly arguable and fell far short of the high CCSU/Wednesbury threshold.
  • Reasons: Although “far from clear”, the letters told the petitioner what mattered—his perjury conviction—thus meeting any contextual duty to give reasons.
  • Fettering: The correspondence did not establish a rigid, exception-free rule; a “material change in circumstances” could reopen consideration.

3. Analysis

3.1 Precedents Cited and Their Influence

The judgment is, in effect, a doctrinal waypoint in a line of Scottish authorities carving out the limits of JR in contractual contexts.

• West v Secretary of State for Scotland (1992 SC 385) – Lord President Hope’s seminal taxonomy distinguished between decisions deriving from a legally circumscribed public power (reviewable) and mere contractual disputes (not reviewable). Lord Young leans heavily on West’s dictum that “contractual rights … such as those between employer and employee, are not as such amenable to judicial review”.
• Abundance Investments Ltd v Scottish Ministers ([2020] CSOH 12) – Lord Clark reviewed post-West case-law, reaffirming the default rule that contractual matters are outside JR.
• Redcroft Care Homes Ltd, Petitioner ([2024] CSIH 34) – The Inner House confirmed that even disputes about public-sector care contracts belong in private law. Lord Young reads Redcroft as the freshest affirmation of the West principle.
• British Oxygen Co Ltd v Minister of Technology (1971 AC 610) – Cited by the petitioner on fettering; distinguished because the “policy” here was not absolute.
• Council of Civil Service Unions v Minister for the Civil Service (1985 AC 374) – The classic statement of irrationality; Lord Young applies Lord Diplock’s “defiance of logic” formulation.

3.2 The Court’s Legal Reasoning

1. Locating the Power – The only express legal basis for the Council’s action is s.64 of the 1973 Act (power to employ staff). Critically, the statute does not prescribe how candidates are to be assessed, nor does it impose procedural safeguards akin to those in licensing or disciplinary contexts. Thus, the Council’s power is “at large” and operates in a contractual environment.
2. Public Law/Private Law Divide – Lord Young emphasises that granting review here would open the JR floodgates to “every applicant for a public-sector job”. The supervisory jurisdiction polices abuse of public powers; it is not a general court of appeal against HR/Recruitment decisions.
3. Usurpation Argument Rejected – Sheridan argued the Council was “usurping” the Scottish Social Services Council (SSSC), the statutory regulator that had found him fit to practise. Lord Young counters that SSSC registration is a minimum gateway; employers may set higher standards.
4. Obiter Merits – On irrationality, the Court underscores two points:
   • The perjury conviction is germane to a social worker who would draft reports for courts.
   • Disclosing unspent convictions is mandated by the Rehabilitation of Offenders regime; Parliament therefore accepts that convictions can be relevant.
   On reasons, contextual adequacy is enough; on fettering, the letters’ latitude for future applications defeats the claim.

3.3 Likely Impact of the Decision

The judgment’s ratio—pre-contractual employment refusals by public authorities are not amenable to judicial review absent a specific statutory framework—has several ramifications:

• Narrowing JR Accessibility – Prospective employees of Scottish public bodies who feel unfairly treated must look to private-law remedies (e.g., discrimination claims, breach of recruitment policy) or political accountability, not to the Court of Session’s supervisory jurisdiction.
• Reinforcing the Contractual Autonomy of Public Employers – Public authorities retain wide discretion to set recruitment criteria beyond statutory minima (subject to Equality Act constraints).
• Clarifying the SSSC/Employer Relationship – Registration certifies baseline competence but does not guarantee consideration, let alone employment. Future litigants will find it difficult to argue that an employer “usurps” a regulator by applying additional vetting standards.
• Procedural Economy – The judgment discourages strategic use of JR as a quicker or more high-profile substitute for ordinary contract or discrimination litigation.

4. Complex Concepts Simplified

• Supervisory Jurisdiction – The unique Scottish procedure (judicial review) whereby the Court of Session oversees decisions taken under a public law power, ensuring legality, procedural propriety and rationality.
• Competency – Before examining merits, the court asks whether the matter falls within its supervisory remit. An “incompetent” petition is one the court cannot entertain, no matter how arguable the merits.
• Wednesbury/CCSU Irrationality – A decision so outrageous in its defiance of logic or accepted moral standards that no sensible person could have arrived at it.
• Fettering of Discretion – A public body must not bind itself to an inflexible policy; it must remain free to consider individual circumstances. Evidence of exceptions being possible generally defeats a fettering challenge.
• SSSC Fitness to Practise – A regulatory assessment determining whether an individual should be admitted to (or remain on) the social workers’ register. Passing this hurdle enables, but does not entitle, one to employment.

5. Conclusion

Lord Young’s ruling stands as a clear signpost on the map of Scottish public-law litigation: where a public authority’s decision concerns the formation (or non-formation) of an employment contract, the matter is ordinarily one of private law, not judicial review. By reaffirming and extending West and Redcroft, the Court of Session has made it considerably harder for disappointed job applicants to cloak recruitment grievances in public-law garb. The judgment also underlines that statutory registration regimes supply a floor, not a ceiling, for employer discretion. Overall, Sheridan v Glasgow is likely to be cited frequently whenever litigants attempt to yoke HR disputes to the supervisory jurisdiction, ensuring that JR remains a remedy of last resort for genuinely public-law wrongs, not an all-purpose forum for employment complaints.