News Updates

Re-engagement and belief in an employee's dishonesty

Thursday 12th January 2017

In the recent case of United Lincolnshire Hospitals NHS Foundation Trust v Farren, the EAT has considered re-engagement orders.

Mrs Farren was an A&E Staff Nurse alleged to have administered drugs to 4 patients without prescriptions and who had also failed to complete adequate patient records. She was dismissed as a result and because the Trust considered that she had not been honest in her initial response during the investigation.

The ET found that her dismissal was unfair as the procedure followed was deficient. Mrs Farren sought reinstatement or re-engagement. The Trust argued that, because of Mrs Farren’s dishonesty during the investigation and (it was said) before the ET, it could no longer have trust and confidence in her.

The ET concluded that it would not be practicable to order Mrs Farren’s reinstatement to her A&E nursing role, given that misconduct had been established and there existed legitimate concerns about whether Mrs Farren would follow the Trust’s policies in future in stressful situations. However, the ET was satisfied that it was practicable for Mrs Farren to be re-engaged by the Trust in a different role, particularly given her long and otherwise unblemished service.

The EAT allowed the Trust’s appeal against the re-engagement order. The EAT noted that the issue of practicability means more than assessing what is possible, but ensuring that the order is “capable of being carried into effect with success”. Therefore, the ET should have assessed the Trust’s view of trust and confidence, asking whether the Trust genuinely believed that Mrs Farren had been dishonest, and whether that belief had a rational basis. This question was therefore remitted to the original ET.

All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.