Knowledge and approval - When is a will suspicious?
In Lincolnshire County Council v Lupton UKEAT/0328/15 the Employment Appeal Tribunal allowed an appeal against an order for re-engagement which followed a successful unfair dismissal claim.
The case initially came before the employment tribunal and involved a Claimant who worked as a support worker in a youth centre. Her employment contract was favourable to her because she was not required to work outside of school hours or during school holidays. The Respondent attempted to change these hours and when she refused they dismissed her in response. Her dismissal was found to be both substantively and procedurally unfair by the tribunal.
The Claimant sought either reinstatement or re-engagement into one of two posts that had been available at the time of her dismissal (although it had been said by the Respondent that these roles could not accommodate the hours she sought). The tribunal found that both reinstatement and re-engagement into the two roles was not practicable because the working relationship between the Claimant and the Respondent had broken down. However, despite this, the tribunal ordered re-engagement on a wider basis, stating that the Respondent had not addressed the issue of why re-engagement would not be practicable and focused on the fact that the Respondent was one of the largest employers in the area and a position should be able to be found, in a school for example, where the breakdown in relationship with her previous colleagues would not be an issue.
The Respondent appealed on the grounds that
With regard to the first ground, the EAT held that the tribunal had not erred in law and was entitled to consider re-engagement on a wider basis, notwithstanding the Claimant’s stated preference. That said, the EAT allowed this ground of appeal on the basis that it felt the procedure followed by the court was unfair, in that had the Respondent been made aware that the tribunal may make an order on a wider basis, the Respondent would have been in a better position to introduce appropriate evidence. The appeal was also allowed on the second ground, on the basis that an order as to re-engagement does not necessarily obligate an employer to create a space where one is not there and in this instance the tribunal had inappropriately limited the scope of its enquiry, giving, in particular, undue weight to the fact that the Respondent was one of the largest employers in the area. The third ground of appeal was also allowed. The order was vague and had only stated that the Claimant should be re-engaged in a ‘comparable’ role and therefore the EAT judge agreed that this was not sufficiently precise. The case was remitted back to the employment tribunal.
This decision by the EAT emphasises the importance, in those rare situations where re-engagement is sought, of ensuring that there is sufficient evidence before a tribunal to put the tribunal in a position whereby it is able to make an appropriate decision on re-engagement. The decision shows that it is in an employee’s interests to request details from the employer through the disclosure process of the roles that are available and to identify those the employee deems suitable. It will be in the employer’s interest to analyse the roles identified and to point out factors which indicate why these roles are not suitable alternatives where they wish to prevent re-engagement of an employee. This will allow a tribunal to come to a more considered and therefore enforceable finding in relation to re-engagement.
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