Employment Update July 2009: Re-instatement

23 July 2009

Employment Group

Limits on availability of re-instatement as a remedy

In Central & NW London NHS Foundation Trust v Abimbola, an employer successfully appealed against a re-instatement order.

The claimant won his unfair dismissal claim because no allegation of misconduct had been proven against him.

However, the EAT said that, before ordering him to be re-instated rather than compensated for the loss of his job, the tribunal was required to consider whether it was ‘practicable’ to do so.

Factors that should properly be taken into account (even though they were not sufficient in themselves to make the dismissal fair) were –

  • The claimant, although successful in his claim, was shown to have been lying to the tribunal over his loss of earnings;

  • A final warning, which had been ignored when considering the fairness of the dismissal, might be relevant;

  • As were unproven complaints of misconduct against the claimant; and

  • The employer's genuine belief that the claimant had been guilty of an assault on a patient, even though it could not be proved.

For these reasons it would be wrong to order re-instatement.

Point to note –

  • All the factors cited by the EAT are examples of a breakdown in the relationship of trust and confidence that must exist between employer and employee if the relationship is to continue. It will be a very rare case where this relationship has survived the bringing of an unfair dismissal claim, making it ‘practicable’ for a re-instatement order to be made.