ECJ Unfair Dismissal: Reinstatement/Re-Engagement – Unfair dismissal – remedy – re-engagement – section 116 Employment Rights Act 1996
The Claimant was a long-serving Staff Nurse employed by the Respondent in AandE. During the course of a particularly stressful overnight shift, she had administered medication to four patients without prior prescription by a doctor and failed to properly complete records. She was dismissed for her conduct in these respects and because the Respondent considered she had failed to be honest in her initial response to the investigation when she said her record keeping had been satisfactory. On the Claimant’s complaints of unfair and wrongful dismissal, the ET found she had been unfairly but not wrongfully dismissed; specifically, she had administered medication without prescription and failed in her record keeping but the Respondent had not shown reasonable grounds for its conclusion as to her dishonesty in that respect.
At the subsequent Remedy Hearing, the Claimant sought an order for reinstatement or re-engagement, which the Respondent resisted, contending: (1) it could no longer trust the Claimant to adhere to its Policy for Medicines Management, which raised patient protection issues and questions of public trust; and (2) more generally, it could no longer have trust and confidence in the Claimant because her response to the disciplinary case and her evidence before the ET had been dishonest. The ET accepted there was an issue in respect of the Respondent’s Policy: if the Claimant was employed in its AandE department, the Respondent had a legitimate concern as to whether it could trust her to adhere to the Policy if faced with similarly stressful situations (as might be expected in that department). It considered, however, that an order for re-engagement into another department was practicable. It did not accept that the Respondent had shown that the Claimant had been dishonest; the ET considered she was capable of being trusted in another nursing role. In determining the amount of any back-pay due to the Claimant, however, the ET accepted that she had contributed to her dismissal such that there should be a reduction of one third in any sums awarded. The Respondent appealed.
Held: allowing the appeal in part; the question of re-engagement remitted to the ET.
The statutory test laid down by section 116 ERA was one of practicability. The ET was required to reach a provisional view on this question (McBride v Scottish Police Authority  IRLR 633 SC); practicability was something more than what might simply be possible, the order had to be ‘capable of being carried into effect with success’ (Coleman v Magnet Joinery Ltd  ICR 46 CA). The answer to that question was not determined simply by the fact that the Claimant had committed the act of misconduct in question, by the ET’s rejection of the practicability of a reinstatement order or by its finding on contribution. The point was, however, put in issue by the Respondent’s contention that it had lost trust and confidence in the Claimant – a matter that could plainly be relevant to practicability – because she (1) had committed the act of misconduct, and (2) had not been honest about that, either in the internal process or before the ET. To ask (as the ET had) whether the Respondent had established that the Claimant was in fact dishonest and to then apply its own conclusion to her honesty and trustworthiness was not the correct test. The ET had to ask (applying Wood Group Heavy Industrial Turbines Ltd v Crossan  IRLR 680 EAT and United Distillers and Vintners Ltd v Brown  UKEAT/1471/99) whether this employer genuinely and rationally believed that the Claimant had been dishonest. The ET having erred in its approach to the question of practicability, the appeal would be allowed on this basis and the Order set aside.
Accepting, however, that there might be more than one answer to the question of practicability (applying the correct approach) in this case, and that the ET was best placed to carry out the necessary assessment, the matter would be remitted to the same ET.
Eady QC HHJ
 UKEAT 0198 – 16 – 1411
England and Wales
Updated: 27 January 2022; Ref: scu.572672