Background/Facts

Reinstatement is a potential remedy for a Claimant employee at an Employment Tribunal. The remedy can be requested by a Claimant as an addition to, or in place of, compensation in an unfair dismissal claim. Section 116 of the Employment Rights Act 1996 requires the Tribunal to have regard to three factors when considering whether or not to reinstate a successful Claimant employee:

1. Whether the Claimant wishes to be reinstated;
2. Whether it is practicable for an employer to comply with an order for reinstatement; and
3. Where the Claimant caused or contributed the dismissal, whether it would be just to order reinstatement.

In this case Mr Abimbola was a psychiatric nurse who worked for the Trust and was dismissed after a disciplinary hearing decided that his restraint methods, used against a particular patient, constituted assault. The Tribunal found for the Claimant on liability and also ordered reinstatement. The NHS Trust appealed the finding on liability but was not successful. It also appealed the remedy imposed by the Tribunal to reinstate Mr Abimbola. Of the above tests the second test was the key issue, as the first test and third test were met (i.e. Mr Abimbola did wish to be reinstated and the Tribunal found that he had not caused or contributed to his own dismissal).

The Employment Appeal Tribunal (EAT) has now clarified that, with regards to the practicability of an employer to comply with an order for reinstatement (the second test above), the existence of “mutual trust and confidence” between the employer and employee was a highly relevant factor. 

The EAT found a number of facts and factors had not been taken into account by the Tribunal when considering the question, for example; there had been some dishonesty in Mr Abimbola’s evidence which had cast doubt over his reliability, there was an outstanding warning, there were prior unproven allegations of sexual misconduct which could have affected trust and confidence and finally (whether or not true) the Trust genuinely believed Mr Abimbola had restrained a patient in a head-lock.

The EAT held that the Employment Tribunal had erred in taking too narrow a view of the second test and had not considered all the other factors that could have affected trust and confidence. The Respondent employer could no longer be expected to trust the Claimant and the reinstatement order was set aside.

Comment

The case is good news for employers. In most forms of other contract (other than the employment contract) courts can order specific performance of the contract, so that both sides fulfil their obligations under the contract. This causes a problem with employment law, because to order an employee to continue working when the employment relationship has broken down is neither desirable nor practicable and indeed would, in effect, be a form of slavery. Careless orders for reinstatement by an Employment Tribunal can cause huge problems at an employer if, in reality, the working relationship has become untenable. In this case the EAT has therefore bolstered an employer’s arguments, where there are trust and confidence issues, that reinstatement should not be an appropriate remedy.