Wall James Chappell Latest News

David Ellis

The recent case of Lincolnshire County Council v Lupton (UKEAT/0328/15/DM) has highlighted the need for employment tribunals to consider the practical implications of re-engagement orders and ensure that any terms of re-engagement are expressed with appropriate detail and precision.

The claimant in the case was a part-time support worker in a youth centre run by Lincolnshire County Council.  She was summarily dismissed following her inability to accept a change to her working hours in light of her duties as a foster carer.

The claimant presented a complaint of unfair dismissal to the employment tribunal.  The tribunal held that the claimant’s dismissal had been both procedurally and substantively unfair.  The claimant requested that she be reinstated into her old role or, failing that, she be re-engaged into one of the two posts that had been vacant at the youth centre at the time of her dismissal.  The tribunal concluded that neither of these was practicable as the working relationship between her and her former colleagues had broken down. However, the tribunal said the council was one of the largest employers in the area and had vacancies in schools which could accommodate the claimant’s need to work during term time.  The tribunal accordingly ordered that the claimant be re-engaged in one of these schools and be given a term time contract with part-time hours in the locality in which the claimant lived.  It said the role was to be ‘comparable’ to that from which she was dismissed.  The council appealed the decision.

The Employment Appeal Tribunal (EAT) found that, whilst it was open to the employment tribunal to consider wider re-engagement than that specifically claimed by the claimant, the approach taken by the tribunal was procedurally flawed as the council did not have the opportunity at the hearing to present evidence and make submissions as to the suitability of the wider roles. The EAT also found that the tribunal had not properly considered whether it was practicable to re-engage the claimant in the wider sense - it had limited its considerations to the fact that the employer was the largest in the area and that schools could accommodate term time working.  The EAT also found that reference to a ‘comparable’ role did not meet the level of detail and precision required when making an order for re-engagement.  The re-engagement order was repealed and the case remitted back to the same tribunal to re-consider the point.

This case highlights the fact that, whilst employment tribunals have a wide discretion in this area, they need properly to consider the practicality of re-engagement and ensure any re-engagement orders are expressed with detail and precision. Where a claimant is seeking re-engagement he or she should identify at tribunal any potential roles and highlight any relevant role-related information (such as available working hours and experience) so that an employer may have the opportunity to comment on the ability of the claimant to undertake such roles.