In the case of United Lincolnshire Hospitals NHS Foundation Trust v. Farren UKEAT/0198/16, the Employment Appeal Tribunal (EAT) considered re-engagement of a band 5 staff nurse. The Claimant was dismissed for allegedly administering drugs to four patients without prescriptions and failing to adequately record their treatment. The decision was held to be unfair because of a predetermined presumption of guilt.

The Trust argued that the Claimant could not be re-engaged because it could no longer trust her. This was based on her response in the disciplinary case and evidence before the Tribunal, which the Trust considered had been dishonest.

The Tribunal was clear that a conduct dismissal alone will not mean that re-employment would be unjust. Rather it was important to assess the degree of the employee's contribution to the dismissal. If the contribution level was high, this might be inconsistent with the Trust re-engaging the Claimant. The Tribunal considered the Trust's Policy for Medicines Management. It also considered the Claimant's long service and character references and the fact that she had taken voluntary training in medicines management.

The Tribunal considered that the Claimant could not be re-engaged in her old role, given the emphasis placed on respect for the policy, but she could be re-employed in a band 5 post at the hospital outside A & E.

The Trust successfully appealed, and the EAT remitted the case back to the same Tribunal.

The EAT said that when the Tribunal is contemplating an order of re-engagement and an employer is relying on a breakdown in trust and confidence, the Tribunal will need to be satisfied that:

• the employer genuinely believed that trust and confidence had broken down; and
• that belief was not irrational.

The issue of the breakdown of mutual trust and confidence needs to be tested (i.e. the Tribunal must not just form its own view) before the Tribunal can decide if it is practicable to re-engage.

Orders for re-engagement remain rare. However, where a Tribunal can be said to have substituted its view in a re-engagement, this will result in a ground for appeal.