United Lincolnshire Hospitals NHS Foundation Trust v Farren

Under section 116 of the Employment Rights Act 1996, the central question for re-engagement is practicability. This means more than mere possibility: the order must be capable of being carried into effect with success.

Where an employer relies on lost trust and confidence, the tribunal must assess whether this employer genuinely and rationally believes that trust has broken down and cannot be repaired. The tribunal must not substitute its own view of the employee’s honesty or trustworthiness. Misconduct, contributory fault, refusal of reinstatement and the availability of alternative roles are relevant, but none is necessarily determinative. The assessment requires a fact-sensitive and nuanced evaluation.

The respondent nurse had been summarily dismissed after administering medication without prior prescription and failing adequately to complete patient records. The Employment Tribunal found the dismissal unfair, although the conduct amounted to serious professional misconduct for the purposes of the wrongful-dismissal claim.

At the remedy hearing, the Tribunal refused reinstatement to the accident and emergency department but ordered re-engagement in another nursing post. It considered that the respondent had not established dishonesty and that the claimant could be trusted outside the accident and emergency environment. The employer appealed, contending that the Tribunal had applied the wrong approach to practicability and trust and confidence.

1. Appeal allowed in part. The order for re-engagement was set aside and the question was remitted to the same Employment Tribunal for rehearing. The appeal succeeded because the Tribunal had approached practicability from its own perspective rather than asking whether re-engagement by this employer of this claimant could work.
2. Section 116 of the Employment Rights Act 1996 requires a provisional assessment of practicability at the date of the remedy hearing. The statutory question is not whether re-engagement is merely possible, but whether it is capable of being carried into effect with success. The employer has a further opportunity to establish impracticability under section 117(4).
3. Loss of trust and confidence may make re-engagement impracticable. Where that is relied upon, the Tribunal must examine whether the employer genuinely believes that trust and confidence have broken down, whether that belief has a rational basis, and whether the employer genuinely believes that the relationship cannot be repaired. The relevant perspective is that of the employer required to re-engage the claimant, not the Tribunal or another employer.
4. The Tribunal had been wrong to ask whether the employer had proved that the claimant was in fact dishonest and then to substitute its own assessment of her honesty and trustworthiness. The employer’s belief could be scrutinised for genuineness and rationality, but the Tribunal had to determine practicability between the actual parties.
5. The claimant’s misconduct, one-third contribution, refusal of reinstatement and the Tribunal’s concerns about the accident and emergency role were relevant but not automatically decisive. Long service, previous good conduct, professional commitment and the possibility of re-engagement in another environment could also be considered. More than one outcome was legally possible, so substitution was inappropriate.
6. The employer was awarded appeal costs of £1,600, payable only when it paid the claimant’s fees in the underlying proceedings.

• Employment Tribunal: found the dismissal unfair and ordered re-engagement in a nursing post outside accident and emergency.
• Employment Appeal Tribunal: allowed the appeal in part, set aside the re-engagement order and remitted the issue to the same Tribunal for rehearing.