Oxford Health NHS Foundation Trust v Laakkonen & Ors

An order for reinstatement or re-engagement precludes an award of compensation for unfair dismissal. Under sections 112(4) and 118(1) of the Employment Rights Act 1996, a basic award and compensatory award may be made only where no order under section 113 is made. This does not prevent an order under section 114 requiring payment of benefits which the employee would reasonably have received between dismissal and reinstatement.

A requirement may constitute a provision, criterion or practice despite exceptions. Objective justification requires a permissible balancing of the employer’s legitimate aim against the adverse impact on the disadvantaged group and claimant.

Three part-time consultant child psychiatrists transferred to the Trust under the TUPE Regulations 2006. Their transferred contracts exempted them from out-of-hours on-call duties. The Trust dismissed them after they refused a proposed contractual variation requiring shared on-call duties, while offering re-engagement on the varied terms.

The Employment Tribunal held that the dismissals were automatically unfair, or alternatively unfair under section 98(4) of the Employment Rights Act 1996. It also upheld two claims of indirect sex discrimination, ordered reinstatement, awarded basic awards, and awarded one claimant child-care expenses. The Trust appealed the liability findings and the remedies.

1. The appeal was allowed only in respect of the basic awards. The Tribunal’s findings of unfair dismissal and indirect sex discrimination, and its orders for reinstatement, stood. Grounds concerning whether the dismissal reason was transfer-connected and whether it was an economic, technical or organisational reason were moot because the alternative finding of unfairness under section 98(4) was upheld.

2. The Tribunal made no error of law in finding that consultation had not been genuine. It had properly applied the principles in R v British Coal Corporation ex parte Price. The perversity challenge did not approach the required high threshold. The EAT could not substitute its own view for that of the Tribunal on the employer’s reasonableness.

3. The Tribunal was entitled to identify the requirement that all consultants undertake out-of-hours duties as the relevant provision, criterion or practice. The existence of exceptions did not prevent a PCP arising. It was also entitled to find group and individual disadvantage for the two women claimants, and to conclude that equal participation in the on-call scheme, although a legitimate aim, had not been objectively justified.

4. Sections 112(4) and 118(1) of the Employment Rights Act 1996 make reinstatement and an award of unfair-dismissal compensation mutually exclusive at the time of the remedy order. The basic awards therefore had to be set aside. However, the claimant’s child-care expenses were recoverable under section 114 because, but for dismissal, she would have received her full salary without incurring them; payment restored her position during the period until reinstatement.

• Employment Appeal Tribunal: Allowed the employer’s appeal only to set aside the basic awards; dismissed the remaining grounds and left the reinstatement orders and the expenses award in place.
• Employment Tribunal, Southampton: In reasons promulgated on 13 July 2012, found unfair dismissal and indirect sex discrimination, ordered reinstatement, and made the challenged remedy awards.