Case update (1): Unfair dismissal – re-engagement

Summary:  In cases of re-engagement, whose belief in the breakdown of trust and confidence between employer and employee is the most critical; the Tribunal’s or the employer’s?

The employer’s, says the EAT in United Lincolnshire Hospitals NHS Foundation Trust v Farren available here.  The Tribunal should not substitute its view on a breakdown in trust and confidence for the employer’s view.

Facts:  A nurse, the employee, who worked in A&E was dismissed for failing to follow the correct procedure for administering drugs.

The nurse brought an unfair dismissal claim and requested re-instatement.  The Tribunal upheld her claim.  Although the Tribunal refused to order re-instatement, it did order her re-engagement in a role outside of A&E. However, the Tribunal reached this decision despite 1) the employer arguing that re-engagement was not practicable due to a breakdown in trust and confidence and 2) despite a finding that the nurse had contributed to her own dismissal by one third.

The employer appealed to the EAT on the point of re-engagement.  The EAT remitted the case and confirmed that the Tribunal must consider whether the employer genuinely believed that trust and confidence had broken down and was not irrational in doing so. As such, the Tribunal should test the view of the parties, not substitute its own view.

Implications: Orders for reinstatement and re-engagement remain rare.  However, this case is useful for employers in that it emphasises the importance for employers when faced with a request for re-engagement to focus on the appropriate test: i.e. whether the employer not only genuinely believed that trust and confidence had broken down, but also that this belief was not irrational. Employers also need to be ready for the Tribunal to test this view.