In circumstances where an employment tribunal upholds an unfair dismissal claim, it is open to the tribunal to make an order for reinstatement or re-engagement.

Reinstatement requires the employer to treat the employee as if they had never been dismissed. Re-engagement requires an employer to re-engage a claimant in employment that is comparable to the job from which they were dismissed, or in other suitable employment. In considering whether to make an order for re-engagement, the tribunal must have regard to any wish expressed by the claimant and whether it is practicable for the employer.

In Lincolnshire County Council v. Lupton [2016], the Employment Appeal Tribunal (EAT) allowed an appeal against an order for re-engagement.

The facts

The Council employed Miss Lupton as a support worker at a youth centre in Grantham. She worked on Tuesdays and Thursdays (8.30am to 3.15pm) and on Wednesdays (8.30am to 3.00pm).

Miss Lupton became a foster carer. The Council accommodated her inability to work during school holidays or outside school hours through a combination of unpaid leave and time off in lieu. However, the Council later asked Miss Lupton to change her working hours. Miss Lupton refused and was dismissed. She succeeded in her unfair dismissal claim.

Miss Lupton sought either reinstatement or re-engagement. A tribunal found that reinstatement was not practicable because the working relationship between Miss Lupton and two of her former colleagues at the youth centre had irretrievably broken down. This made re-engagement at the youth centre impracticable also. However, the tribunal found the Council was one of the largest employers in the area and had many roles in schools that could satisfy a need for term-time only working if re-engagement was considered on a wider basis. It therefore made an order for re-engagement.

The Council appealed on the following grounds:

• the tribunal had not considered the fact that Miss Lupton had not sought re-engagement on a wider basis;
• the tribunal came to a perverse conclusion on practicability; and
• the re-engagement order was not sufficiently detailed or precise with regard to the nature of the employment to which Miss Lupton was to be re-engaged.

The decision

The EAT found that although the tribunal was entitled to try to satisfy Miss Lupton’s desire to be re-engaged by considering re-engagement on a wider basis, the approach it had taken was procedurally unfair.

Had the Council been aware of the possibility that the tribunal would make a wider order, it could have presented evidence regarding the viability of such an order at the hearing.

The second and third grounds of appeal were also upheld, with the EAT finding that it was wrong to expect the Council to find a generally suitable role for Miss Lupton, irrespective of actual vacancies. Further, the tribunal had failed to identify with enough detail the nature of the employment in which Miss Lupton was to be re-engaged.

What does this decision mean?

This is a helpful decision for employers. While orders for reinstatement or re-engagement remain rare, where a claimant is seeking re-engagement, this case helpfully highlights that the onus is on the claimant to identify potential roles and seek disclosure from the respondent. A claimant should also identify necessary changes, such as variation of working hours or other types of flexible working arrangements, so the respondent can attend a hearing prepared to deal with the possibility of any changes.