In the recent case of United Lincolnshire Hospitals NHS Foundation Trust v Farren, the EAT held that it is the employer’s view of the dishonesty of an employee seeking re-engagement that matters, and not that of the Tribunal, when determining whether re-engagement would be practicable.
The Claimant was a nurse who was dismissed for administering drugs without a prescription and failing to keep adequate records. Although the Tribunal agreed this was a potentially fair reason for dismissal, it found the dismissal was unfair due to failings in the disciplinary process. The Claimant’s request for reinstatement was found to be unsuitable, as a result of the misconduct alleged, but the Tribunal felt she could be re-engaged in a different role. The Tribunal rejected the Trust’s claim that owing to the Claimant’s dishonesty it no longer had trust and confidence in her.
The Trust appealed and the appeal was upheld by the EAT, who felt that even if it was possible to re-engage this did not mean it was practicable. On the issue of trust and confidence, the Tribunal had relied on its own view that the Claimant was honest, when the issue of trust and confidence should have been judged as between the parties, whether the employer genuinely believed the employee was dishonest and whether such a belief was founded on a genuine and rational basis.
This case provides a useful guide for employers seeking to avoid re-engagement of a former employee, as it shows that a Tribunal will look at the issue of a breakdown of trust and confidence (as a result of an employee’s alleged dishonesty), and how such a conclusion was formed, through the eyes of the parties.