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United Lincolnshire Hospitals NHS Foundation Trust v Farren
The Employment Appeals Tribunal (EAT) has decided in this case that, when considering whether an employer’s lack of trust and confidence in an employee renders it impracticable for the employee to be re-engaged following an unfair dismissal, trust and confidence has to be judged as between the parties. It is the employer’s genuine and rational view of trust and confidence that matters, not the tribunal’s.
F was a staff nurse in a hospital. It was alleged that she administered the drug diazepam to four patients without prescription and failed to complete patient records. F was dismissed because of this incident and she went on to claim unfair and wrongful dismissal.
An employment tribunal upheld the unfair dismissal claim. It accepted that the Trust had established a potentially fair reason for dismissal, namely its belief that F had administered drugs to four patients without prescription and then failed to keep adequate records. However, it concluded that the decision to dismiss was not reasonable because of failings in the disciplinary procedure.
As to the unfair dismissal remedy, F sought reinstatement or re-engagement. The tribunal concluded that it would not be just to order F’s reinstatement into her nursing role, given that it had found as a fact that F was guilty of the misconduct alleged. However, the tribunal was satisfied that it would be just and practicable for F to be re-engaged in a different role. It rejected the Trust’s case that, because of her dishonesty, it could no longer have trust and confidence in her. The Trust appealed against the re-engagement order.
The EAT allowed the appeal. The tribunal ought to ask whether the employer genuinely believed that the employee had been dishonest, and whether that belief had a rational basis. Thus, the issue of trust and confidence has to be tested as between the parties. Although the Trust might have reached a conclusion as to F’s honesty by an impermissible route, the tribunal still needed to ask whether it was practicable or just for it to re-engage F. It was thus the Trust’s view of trust and confidence - appropriately tested by the tribunal as to whether it was genuine and founded on a rational basis - that mattered, not the tribunal’s view.
In Practice
This case demonstrates that it is still extremely rare for an employee who has been unfairly dismissed to be re-engaged in another role, let alone re-instated to their old one. Employers can show very easily in the vast majority of cases that, because their trust in the employee has been broken, it will not be reasonable to re-employ the employee in any way.
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.
