Posted on 21st April 2016

Employees looking to be re-hired following claims of unfair dismissal have been urged to check – and double check – the small print.

The advice comes following a recent case in which Lincolnshire County Council successfully appealed an order for re-engagement after one of its employees won her unfair dismissal case and asked to come back to work.

In Lincolnshire County Council v Lupton, the Employment Appeal Tribunal (EAT) overturned a Re-engagement Order, remitting it for reconsideration to the same tribunal. The EAT said the tribunal had failed to adequately address the practicability of re-engagement. It had also failed to specify in any detail the nature of the employment in which the claimant should be re-engaged.

The Law

Once a tribunal has found a dismissal to be unfair, it must in law go on to consider what remedy should be granted. It must explain to the claimant what orders for reinstatement or re-engagement are available, and in what circumstances, and ask the claimant whether they wish the tribunal to make such an order (ERA 1996 s 112). It is only if the claimant specifically asks that an order can be made.

A tribunal has wide discretion in deciding whether an order is appropriate.

However three factors are expressly provided for in the legislation:

  1. In the case of reinstatement, whether the employee wishes that order (as opposed to an order of re-engagement) to be made, and where the proposed order is of re-engagement, the employee’s wishes as to the nature of that order;
  2. Whether it is practicable for the employer (or, in the case of re-engagement, when relevant an associated employer or successor) to comply with the order;
  3. Whether the employee has caused or contributed to his own dismissal.

In Lincolnshire the claimant was employed by the council as a support worker at Earlsfield Youth Centre in Grantham from 14th July, 2010 until her dismissal in 2014. In June 2012 the claimant became a foster carer, which meant that she could no longer work during school holidays or outside school hours. The council accommodated this by allowing unpaid leave or by giving time off in lieu. However, in 2014 the council required the claimant to change her working hours. When she refused she was dismissed.

An employment tribunal found her dismissal to be both procedurally and substantively unfair. The tribunal made an order that the claimant be re-engaged. It noted that the council was one of the largest employers in the area and referred to a list of 78 vacancies that had been available in April/May 2015, noting that many of those were based in schools and could satisfy the need for the claimant to work term time only.

The tribunal’s order stated: “The nature of the employment is a term time only contract with part time hours of 18.5 per week which are to be within school hours in the locality of Grantham. The employment is suitable in regard to the claimant’s background and experience comparable to that from which she was dismissed or other suitable employment.”

The council appealed against the order arguing, among other things, that the tribunal had failed to properly address the question of practicability of re-engagement and had failed to identify the nature of the employment to which the claimant was to be re-engaged with any degree of detail and precision, contrary to S.115(2)(b) ERA.

Firstly, The EAT found that the council had not been afforded the opportunity to make submissions in response to the wide basis in which re-engagement was argued.

Secondly, it found that the tribunal judgment had been flawed in that ‘practicability’ was not established. In the claimant’s own witness statements the practicability of re-engagement on the wider basis was significantly curtailed.  Indeed, 59 were roles that she was unqualified to perform and the remainder, apart from three, were located outside her local area, with the three remaining being full-time posts.

The Honourable Mrs Justice Simler DBE clarified at para 20: “That did not necessarily make those jobs impracticable, but on the face of the list, unless changes were made in terms of part-time working or job-sharing, they were not necessarily practicable at that time and no attempt was made to establish that they were.  Since practicable means more than merely possible but capable of being carried into effect with success.”

Finally, the council successfully argued that the tribunal failed to identify the type of employment in which the claimant was to be re-engaged with any degree of detail and precision.  The statute expressly requires the tribunal to specify the nature of the employment.  That is mandatory and failure to comply with that requirement is an error of law.

The order made required re-engagement into employment that was ‘…suitable in regard to the claimant’s background and experience comparable to that from which she was dismissed or other suitable employment (115(2)(b) ERA’. It was not adequate to simply require that the employment must be comparable.

The clear lesson for claimants considering requesting a re-engagement order must be that they set out in as much detail as they can, which roles they believe are ‘practicable’ rather than possible.

This article was written by No5 Chambers Employment Barrister Charles Price.

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