Practicability of re-engagement

Wed, 05 Jun 2013

Accusing colleagues of fabricating evidence will not necessarily render re-engagement at a different location impracticable says the EAT in Oasis Community Learning v Wolf (UKEAT/0364/12).

By Catherine Jones
 
Facts
 
The Claimant was a teacher engaged by the Respondent at a school in Immingham, who was dismissed following allegations of misconduct and a disciplinary procedure. On the fourth day of the hearing, the Respondent agreed to a finding of unfair dismissal. Victimisation and whistleblowing claims had been made but were withdrawn at an early stage.
 
During the course of the dispute, the Claimant had made various allegations in correspondence against the Respondent and other members of staff, including that evidence had been fabricated. The Respondent relied on this correspondence as evidence that the relationship was such as to make re-engagement impracticable.
 
The Claimant in this case, despite initially seeking reinstatement, accepted that it would not be practicable to seek reinstatement at the school in Immingham. The Tribunal was therefore only required to consider re-engagement at an alternative site.
 
At the remedy hearing a re-engagement order was made specifying that the Claimant was to be engaged at a different school in Croydon. The Tribunal distinguished the case of Nothman v London Borough of Barnet (no 2) [1980] IRLR 65 for two reasons: the Claimant here was not alleging that he was the victim of a conspiracy and he was not seeking re-engagement at the same school. 
 
The Respondent appealed against the making of that order (which had been complied with by the time of the hearing before the EAT).
 
EAT decision
 
The Tribunal’s decision was upheld.
 
The fact that the re-engagement was to be at a different school was said to be of “fundamental importance”. The Tribunal had recognised that the Claimant was capable of causing difficulties as an employee, but regarded him as willing and able to start afresh at the new school. That assessment could not be said to be perverse.
 
The Respondent’s submission that Nothman should not be read too literally so as to be confined to allegations of “conspiracy” was accepted. The issue was whether allegations were made by the dismissed employee that would make it impracticable to re-engage him.
 
Comment
 
The EAT expressly stated that every case will turn on its facts and that no general conclusions about the readiness with which reinstatement or re-engagement orders should be made should be drawn from this case. Nevertheless, it is plain that the crucial fact at play here was that the proposed re-engagement was at a different site. It was said to be “inherently unlikely that any difficulties outside the sphere of those with whom he would have a regular working relationship would be such as to render his re-engagement impracticable”.
 
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