If an employment tribunal upholds a complaint of unfair dismissal, it has the power to make an order for reinstatement or re-engagement.
The EAT has held that a tribunal were wrong to order the re-engagement of an employee who had been unfairly dismissed following an allegation of sexual misconduct.
Before ordering re-engagement, a tribunal must consider the employee’s wishes, whether it is practicable for the employer to comply with a re-engagement order and, where the employee caused or contributed to their dismissal, whether ordering re-engagement would be just (section 116(3), Employment Rights Act 1996).
In this case, the tribunal found that, while the relevant decision-taker genuinely believed the employee had committed the alleged misconduct, their belief was unreasonably derived from a flawed investigation which the appeal process had failed to rectify. Following this decision, but before the remedy hearing, the employer instructed an independent investigator to undertake a fresh investigation. The investigator concluded that the accuser had been truthful. The employer upheld its gross misconduct finding.
At the remedy hearing, the employer did not argue that the employee had caused or contributed to his dismissal. Instead, it argued that its genuine and rational concerns about his conduct made it impracticable to re-employ him. The tribunal considered itself bound to address the issue of contributory conduct and found that, on the balance of probabilities, the alleged sexual assault did not occur. It held that it was irrational for the employer to have concerns about the employee’s conduct based on the independent investigation which it considered to be flawed in several respects. The tribunal ordered re-engagement. The employer appealed.
The EAT held that the tribunal were wrong to determine whether the employee had committed the alleged misconduct. Section 116(3) does not mandate the tribunal to make a finding on contributory conduct. Only where the tribunal has made such a finding (at the liability stage or because it was raised on remedy) would it need to consider whether it would be just to order re-engagement.
The tribunal had also erred by losing sight of the fact that practicability had to be determined from the employer’s perspective. It had considered the reasonableness of the independent investigation when it should have considered whether re-engaging the employee was likely to be practicable in circumstances in which the employer had accepted the investigation’s finding that he had committed a sexual assault and considered that he could no longer be trusted. The re-engagement order was set aside.
Case
British Council v Sellers [2025] EAT 1 (3 January 2025)
John Cook
