Whether to order Re-instatement or Re-engagement: British Council v Sellers [2025] EAT 1
In determining whether to make a reinstatement or re-engagement order, section 116 provides that
the ET must take into account three matters, which can be summarised as follows:
(a) the complainant’s wishes;
(b) practicability, and
(c) contributory fault.
The complainant’s wishes
The first mandatory consideration under section 116 ERA thus relates to any expression of view by the complainant: whether they wish to be reinstated (section 116(1)(a)), or as to the nature of any re-engagement (section 116(3)(a)). In respect of the former, although a complainant might want to be re-employed, it may well be they would not wish to be reinstated to their former job; this would be an obviously relevant consideration mitigating against reinstatement.
Section 116(3)(a) is phrased more widely: assuming the employee does not wish to be reinstated, or the ET has determined not to make such an order, the ET is required to have regard to any wish expressed by the complainant as to the nature of a re-engagement order. That might be relevant to a number of matters; from whether the ET should make such an order, to the particular terms it might direct. Of course, a complainant might not express any view about these matters, but, if they do, this is something the ET is required to take into account.
Practicability
The second matter the ET is required to take into account is whether it is practicable for the employer to comply with an order for reinstatement or re-engagement (other than that the latter might require the ET to consider practicability in relation to a successor or associated employer, this obligation is expressed in identical terms for either type of order).
“Practicable” in this context means the employee’s reinstatement or re-engagement is not merely possible but is capable of being carried into effect with success: Coleman v Magnet Joinery Ltd [1975] ICR 46, at p 52B-C, approved by the Court of Appeal in Kelly v PGA European Tour [2021] ICR 1124, per Lewis LJ at paragraph 8. Under section 116, the ET is inevitably making a prospective judgment – on a neutral burden of proof – as to the practicability of compliance. A further opportunity to consider this issue can arise if an order is made but the employer fails to comply; in those circumstances, section 117 ERA provides for an award of compensation and for the making of an additional award unless the employer can satisfy the ET (applying the civil standard of proof) that compliance with the order was not practicable (section 117(4)).
Practicability is a question of fact for the ET, to be determined at the date when it is making the order, which may require it to deal with circumstances that are different to those that prevailed at the date of dismissal.
Determining practicability requires, however, a real world assessment of that which is practical, not simply that which is possible: Rao v Civil Aviation Authority [1992] ICR 503 EAT at p 513 (affirmed by the Court of Appeal at [1994] ICR 495), and it has been seen as “contrary to the spirit of the legislation” to make an order for re-instatement (or re-engagement) which would result in a redundancy process or significant overmanning (Cold Drawn Tubes Ltd v Middleton [1992] ICR 318 EAT), albeit that this will always be a question to be determined on the specific facts of the case in question (hence the decision of the EAT in Highland Fish Farmers Ltd v Gavin Thorburn and anor UKEAT/1094/94, upholding the ET majority decision in that case).
Moreover, although it is undertaking an objective assessment, the ET must keep in mind that the relationship has to work in human terms, considering the question of re-employment from the perspective of that particular employer (Kelly v PGA, per Underhill LJ at paragraph 69). Although this is often phrased as an issue of trust and confidence (whether that is on the part of the employer, see Central & North West London NHS Foundation Trust v Abimbola UKEAT/0542/08, or the employee, see Northman v London Borough of Barnet (No. 2) [1980] IRLR 65), the real point is that it is unlikely to be practicable to order that an employee returns to work for an employer where such confidence is absent (again see per Underhill LJ in Kelly v PGA).
Where an employer genuinely and rationally believes it can no longer have confidence in the complainant as one of its employees (whether that is because of the view it has formed about the complainant’s ability to do the work, or because it believes they have acted in a way that means they can no longer be trusted), that will be a relevant consideration in determining practicability: United Lincolnshire Hospitals NHS Foundation Trust v Farren [2017] ICR 513 EAT at paragraph 40; approved by the Court of Appeal in Kelly v PGA.
It will not, however, be sufficient for the employer to simply assert a lack of confidence: practicability will not be determined on the basis of emotion, assertion, or speculation, and the ET will scrutinise whether the stated belief is genuinely and rationally held (Farren, paragraph 42). That said, the focus at this stage is not on the process by which a particular decision was reached, but on the material before the ET, which will enable it to assess whether re-employment is likely to be effective.
Applying this test of practicability, where the employer genuinely believes that the complainant has acted in such a way that their re-employment is not tenable, that belief is not to be disregarded simply because it was founded upon a flawed investigation; after all, given that the ET has already held the dismissal was unfair, it is highly likely it will have found that the employer failed to carry out a reasonable investigation. Thus, in Wood Group Heavy Industrial Turbines Ltd v Crossan [1998] IRLR 680, accepting that the finding of unfair dismissal was predicated on there having been insufficient investigation into the alleged misconduct (taking and dealing drugs at work), the EAT nevertheless ruled that, given the employer’s genuine belief in the substance of the allegations, it was not practical to order Mr Crossan’s re-engagement:
“… It may seem somewhat incongruous that where a tribunal goes on to categorise the investigations into the belief as unfair or unreasonable, nevertheless, the original belief can found a decision as to remedy and the practicality of re-engagement, but it is inevitable to our way of thinking that when allegations of this sort are made and are investigated against a genuine belief held by the employer, it is difficult to see how the essential bond of trust and confidence that must exist between an employer and employee, inevitably broken by such investigations and allegations can be satisfactorily repaired by re-engagement or upon re-engagement. We consider that the remedy of reengagement has very limited scope and will only be practical in the rarest cases where there is a breakdown in confidence as between the employer and the employee. Even if the way the matter is handled results in a finding of unfair dismissal, the remedy, in that context, invariably to our minds will be compensation.”
In Crossan, the nature of the misconduct in issue was plainly a relevant consideration: if the employer genuinely believed that the employee was taking and dealing drugs at work, it is hard to see how it would be practical to require him to be re-employed. Where, however, reliance is placed on what is said to be a breakdown in relations, the position may be more nuanced. Thus, in Oasis Community Learning v Wolff UKEAT/0364/12, the EAT upheld an order for re-engagement where, notwithstanding the employer’s view of Mr Wolff’s previous intemperate behaviour, the ET had been entitled to consider that re-employment into a different part of the organisation, dealing with different managerial personnel, was likely to be effective. More generally, the question of practicability is not to be answered by reference simply to the views of the relevant dismissing officer; the ET is required to assess the practicability of re-employment from the perspective of the employer, the views of which may not be represented by one particular manager. As Her Honour Judge Tucker observed at paragraph 99 London Borough of Hammersmith v Keable [2022] IRLR 4, EAT:
“In our view, it does not automatically follow, particularly in an organisation as large as the Council, that because the dismissing officer … genuinely believed that the Claimant had been guilty of misconduct, that the Council, as an employer, had lost trust and confidence in him. …”
Context will, however, always be key. In ILEA v Gravett [1988] IRLR 497, the EAT considered it was of little relevance to the question of practicability that the employer (the largest education authority in the country) had a vast variety of posts into which Mr Gravett could be fitted: any of those posts would inevitably mean Mr Gravett would be involved in the care of young children and, given that ILEA genuinely believed him guilty of alleged sexual offences involving a 13 year old girl, re-engagement was not a practical option.
Contributory fault
Finally, section 116(3) (c) ERA provides that the ET shall take into account:
“where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms”.
There is an identical requirement under sub-paragraph 116(1)(c) (dealing with reinstatement), albeit that does not require the ET to go on to consider the terms of the order.
