In this case, the EAT looked at what tribunals need to take into account when making re-engagement orders.
Ms Lupton was employed by Lincolnshire County Council. Because she was a foster carer, she did not work during school holidays or outside school hours. She did not agree to the Council's requirement that she changed her working hours, and she was dismissed. The employment tribunal found that she was unfairly dismissed. Ms Lupton would have found it very difficult to find another job with hours that enabled her to meet her responsibilities towards her foster child, so she asked either to be reinstated into the role from which she had been dismissed or re-engaged into one of two roles that had been vacant at the time of her dismissal. The tribunal found that reinstatement or re-engagement at the youth centre at which she had worked were both impracticable because of a breakdown in working relationships. However, the tribunal said that the Council was one of the largest employers in the area, and it had many jobs in schools which might suit Ms Lupton's requirements. The tribunal therefore made a very wide order for re-engagement on part time hours within school hours in the locality of Grantham, with the employment being suitable taking into account her background and experience.
The Council appealed, and the EAT upheld the appeal. It said that the Council had not had the opportunity to give evidence on the practicability of such a wide re-engagement order, and it should be given this opportunity. Re-engagement has to be practicable, which means that it should be more than merely possible, and should be capable of being carried into effect with success. Practicability had not been established here. The EAT also said that re-engagement orders should not be used to impose a duty to find a generally suitable place for a dismissed employee irrespective of actual vacancies, and that the tribunal had not been sufficiently detailed and specific about the re-engagement order.
What does this mean for employers?
Orders for reinstatement or re-engagement are rare. This decision is a sensible one, as it could be very problematic for employers were tribunals able to make general orders for re-engagement without giving them the opportunity to explain why the re-engagement terms are not practicable. This EAT decision makes it clear that tribunals do not have the power to do so.
Employees who are seeking re-engagement are likely, following this case, to be pro-active in identifying potential roles and terms of re-engagement. Employers who are facing the possibility of a re-engagement order should be ready to give evidence as to why re-engagement on the suggested terms is impracticable. This might include evidence about the breakdown in relationships, vacancies, skills and experience, and the working hours relevant to the specific role.