Re-Engagement Orders: The Importance of Precision
The EAT has handed down its decision in Lincolnshire County Council v Lupton UKEAT/0328/15/DM, in which Andrew Sugarman acted for the successful appellant employer in overturning a relatively rare re-engagement order.
Ms Lutpon was employed as a Support Worker a youth centre. Following a finding of unfair dismissal, she sought re-instatement and, failing that, re-engagement into one of two roles located at the centre.
The Employment Tribunal declined to order re-instatement or re-engagement back at the centre on the basis there had been an irreparable breakdown in relations. However, it observed that the Council was one of the largest employers in the area and referred to a list of 78 vacancies that had been available prior to the hearing. Noting that the Council’s solicitor had not addressed why re-engagement outside of the centre would not be practicable under s116 Employment Rights Act 1996 (but glossing over the fact the claimant had not sought re-engagement on that basis), it made a re-engagement order specifying:
"The nature of the employment is a term time only contract with part time hours of 18.5 per week which are to be within school hours in the locality of Grantham. The employment is to be suitable in regard to the Claimant’s background and experience comparable to that from which she was dismissed or other suitable employment."
The EAT held that a broad, commonsense approach was required in relation to the question of practicability but it is a mandatory consideration. In this case, the Tribunal had failed to address the issue of practicability in relation to re-engagement away from the centre and, no doubt as a result, had failed to identify with sufficient or any precision the nature of the employment into which the claimant was to be re-engaged, contrary to S.115(2)(b) ERA.
The Claimant’s own evidence was that none of the 78 available jobs were suitable for her. The three which were in the right area were all full time posts. The EAT held that did not necessarily make those jobs impracticable, it may have been possible to permit part-time working or job-sharing for example. However, the tribunal had failed to address those issues before making the order and its approach was therefore flawed.
As to the specific terms of the order, the EAT held that although tribunals have a wide discretion, the terms must be specified with a degree of detail and precision that was lacking in this case. It was not adequate to simply require that the employment must be comparable. The order should have identified specifically and with precision into what role the Council was ordered to re-engage the Claimant. As such, the appeal was allowed.
A costs award made against the Council was also overturned on the basis the Tribunal had, in concluding one of the Council’s witnesses had acted unreasonably in expressing an intention not to comply with any re-instatement order, misquoted and misconstrued the evidence and ignored the context in which a statement was made. Further, the Tribunal did not take into account that no such order had in fact been made.
Link to transcript: http://www.bailii.org/uk/cases/UKEAT/2016/0328_15_1902.html