Re-Engagement of Unfairly Dismissed Workers - EAT Gives Guidance

An Employment Tribunal (ET) has the power to direct reinstatement of a worker who has been unfairly dismissed or their re-engagement in another appropriate role. However, as one case involving a veteran nurse illustrates, the practicability of such orders will usually depend on whether a relationship of trust can be re-established (United Lincolnshire Hospitals NHS Foundation Trust v Farren).

Ms Farren was a long-serving staff nurse employed by United Lincolnshire Hospitals NHS Foundation Trust in its A&E department. During a stressful night shift, she had been accused of administering to patients medicine that had not been prescribed by a doctor. She was also said to have failed properly to complete records and to have been dishonest in her initial response to the investigation. She was ultimately dismissed for gross misconduct.

In ruling on her case, the ET found that the Trust had established a potentially fair reason for her dismissal. However, her dismissal was unfair in that her guilt had been presumed from the outset. There had also been procedural failings in the disciplinary process that rendered it unfair.

The Trust resisted an order for Ms Farren's reinstatement on the basis that it could no longer trust her to be honest and to adhere to its medicines management policy. The ET accepted that she should not be reinstated in the stressful A&E department where she had formerly worked. However, it considered that she could be trusted in another nursing role and directed her re-engagement.

In upholding the Trust's challenge to that decision, the Employment Appeal Tribunal (EAT) found that the ET had applied the wrong legal test in deciding that Ms Farren's re-engagement would be practicable, within the meaning of the Employment Rights Act 1996. Rather than focusing on whether she had in fact been dishonest, the ET should have asked itself whether the Trust genuinely and rationally believed that she had been.

The EAT remitted the re-engagement issue to the same ET for reconsideration.