Unfair dismissals and re-employing

If an employee is dismissed for misconduct but later cleared at an employment tribunal, the tribunal can – though rarely does – make an order for the employee to be re-employed.

The Employment Appeal Tribunal (EAT) considered whether doing so was feasible in a case where the employer said that trust and confidence had broken down.

Case: United Lincolnshire Hospitals NHS Foundation Trust (ULH) v Farren

Farren had worked for ULH since 1992 and was a fully qualified staff nurse (band 5). ULH had a medicine management policy and treated any breach of it as a misconduct offence.

A young boy died while Farren was working a night shift in Accident & Emergency (A&E). Farren allegedly gave diazepam (a calming drug) to 4 members of the boy’s family without a doctor’s prescription; this was an unauthorised act based on ULH’s medicine management policy.

During a disciplinary process, Farren accepted that she hadn’t kept adequate treatment records. She stated that a doctor had prescribed the diazepam; but the doctor said that Farren had completed the prescriptions after, and not before, giving the drugs.

Farren was dismissed. She made a claim at a tribunal for unfair dismissal.

The tribunal decided that ULH had presumed guilt from the outset and a fair procedure hadn’t taken place. It found that Farren’s dismissal was unfair. Since she had been cleared of misconduct, the tribunal considered an order for re-employment. It considered:

  • The degree to which Farren’s conduct had contributed to her dismissal
  • Her long service and character references, and that she’d taken voluntary training in medicine management.

The tribunal found that re-employing Farren in her old role wouldn’t be workable, but she could be re-employed in another band 5 post in a different department (outside A&E). ULH appealed to the EAT against the re-employment order based on a breakdown in trust and confidence in Farren.

The EAT upheld ULH’s appeal and sent the case back to the tribunal. It said that when a tribunal is considering an order for re-employment and an employer has said that trust and confidence in the employee has broken down, the tribunal must be satisfied that the employer’s belief is genuine, well founded and not irrational.

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