The British Council v Sellers

Under section 116(3)(c) of the Employment Rights Act 1996, an Employment Tribunal must take established contributory conduct into account when deciding whether re-engagement is just. The provision does not require the Tribunal to investigate and determine contributory conduct where no such issue remains before it.

Practicability of re-engagement requires a prospective, real-world assessment. Where an employer genuinely and rationally believes that serious misconduct has destroyed trust and confidence, the Tribunal must assess that belief from the employer’s perspective. It must not substitute its own view on the fairness or adequacy of the investigation, or on the employee’s actual conduct.

The claimant, formerly the respondent’s country director for Italy, was dismissed for gross misconduct after an allegation of sexual touching. The London Central Employment Tribunal upheld his unfair-dismissal claim, finding that the respondent’s belief in the allegation had resulted from an unreasonable investigation.

At the remedy hearing, the respondent withdrew its positive case of contributory fault but opposed re-engagement. It relied principally on a subsequent independent investigation which concluded that the alleged misconduct had occurred, and on its consequent loss of trust and confidence. The Tribunal found that the misconduct had not occurred and ordered re-engagement at senior country director level or equivalent.

The respondent appealed the re-engagement order and a subsequent decision concerning its terms. The central questions were the proper operation of section 116(3) of the Employment Rights Act 1996 and whether re-engagement was practicable.

1. Appeal allowed. The re-engagement order was set aside. The Employment Tribunal erred by deciding whether the claimant had in fact committed the alleged misconduct after the respondent had withdrawn contributory conduct as an issue.

2. Section 116(3)(c) of the Employment Rights Act 1996 is engaged only where the Tribunal has established that the claimant caused or contributed to the dismissal, whether at liability or on an issue properly raised at remedy. It then requires the Tribunal to consider whether re-engagement would be just. It does not impose an inquisitorial duty to determine contributory conduct which the parties have not put before it. The Tribunal’s function is to decide the case the parties choose to advance.

3. The Tribunal was entitled to reject the respondent’s objections based on prospective restructuring and the claimant’s post-dismissal occupation of accommodation in Italy. On the evidence, it was open to find that the staffing position remained uncertain and that the Italian litigation had not fundamentally damaged trust and confidence.

4. However, on practicability under section 116(3)(b), the Tribunal applied its task incorrectly. The question was whether, in the real world, re-employment was likely to work given the respondent’s genuinely and rationally held belief that serious misconduct had destroyed trust and confidence. This was not a fresh Burchell-style inquiry into whether the independent investigator’s process was fair or fell within acceptable investigative parameters.

5. The Tribunal accepted that the external investigator was competent and independent, and that his conclusion might be appropriate on the material before him. It nevertheless found it irrational for the respondent to rely on his report. That conclusion was perverse. It reflected substitution of the Tribunal’s own assessment of the claimant’s conduct and of the required investigation for the respondent’s rationally formed belief. It was therefore unnecessary to determine the challenge to the subsequent decision concerning the incomplete terms of the order, although the Tribunal could not omit terms required by section 115(2) of the Employment Rights Act 1996.

• Employment Appeal Tribunal: allowed the respondent’s appeal and set aside the re-engagement order: [2025] EAT 1.
• London Central Employment Tribunal: upheld the unfair-dismissal complaint by a judgment promulgated on 22 December 2021. It subsequently ordered re-engagement on 26 September 2022, amended on 14 November 2022, and gave a further decision on the order’s terms on 23 December 2022.