Lincolnshire County Council v Lupton

An Employment Tribunal considering re-engagement must give both parties a fair opportunity to address any wider form of re-engagement that has not been specifically identified. It must determine whether the proposed employment is practicable, meaning capable of being carried into effect with success, rather than merely possible.

An order under Employment Rights Act 1996, section 115(2)(b), must identify the nature of the employment with sufficient detail and precision. A generic direction to provide comparable or other suitable work is inadequate. A costs order for unreasonable conduct cannot rest on an incomplete statement taken out of its settlement context without allowing the affected party to address it.

The Claimant, formerly a part-time Support Worker, was unfairly dismissed after refusing altered working hours which conflicted with her foster-care responsibilities. The Employment Tribunal held that reinstatement, and re-engagement at her former youth centre, were impracticable because of a breakdown in working relationships.

It nevertheless ordered the Council to re-engage her in term-time, part-time work in Grantham which was comparable to her former role or otherwise suitable. It also made a costs order of £504 against the Council for alleged unreasonable conduct.

The Council appealed the re-engagement order and the costs order. The central issues were procedural fairness, the practicability and specification of wider re-engagement, and whether the evidence justified a finding of unreasonable conduct.

1. Appeal allowed. The re-engagement order could not stand. The Employment Tribunal had been entitled to take account of the Claimant’s wish to return to Council employment, so it had not erred under section 116(3)(a) of the Employment Rights Act 1996. However, it was procedurally unfair to consider a generic, wider re-engagement order without expressly raising that possibility with the Council. The Council should have had the opportunity to provide evidence and submissions about vacancies, control of school posts, qualifications and flexible working.

2. The Tribunal also failed properly to determine practicability. Re-engagement is not a mechanism for requiring an employer to search generally for work or to create a place for a dismissed employee. Following Coleman v Magnet Joinery Ltd [1975] ICR 46, practicable means capable of being carried into effect with success, not merely possible. The Claimant’s evidence substantially limited the apparent suitability of the vacancy list. The Tribunal did not address that evidence or establish whether changes such as part-time working or job sharing could realistically be made.

3. The order further failed to comply with section 115(2)(b). Although a Tribunal has a wide discretion as to the terms of re-engagement, it must specify the nature of the employment with sufficient detail and precision. A direction to provide employment comparable to the former role or other suitable employment did not identify the particular role into which the Council was required to re-engage the Claimant.

4. The costs order was also set aside. The Tribunal wrongly treated a statement made in settlement discussions, that reinstatement was out of the question because there were no vacancies, as an intention to disregard a future Tribunal order. It omitted the statement’s context and did not give the Council an opportunity to address a proposed costs order on that basis.

5. The issue of wider re-engagement, excluding a role at the former centre, was remitted to the same Employment Judge. Applying the factors in Sinclair Roche & Temperley v Heard & Anor [2004] IRLR 763, remission to that Judge was fair and proportionate.

• Employment Appeal Tribunal: Allowed the Council’s appeal. The re-engagement order and costs order were set aside. Wider re-engagement was remitted to the same Employment Judge.
• Employment Tribunal: Found the dismissal procedurally and substantively unfair. It refused reinstatement but ordered wider re-engagement and awarded £504 costs to the Claimant.