The Practicability of Re-engagement
Wood Group v Crosson IRLR 680
The EAT have in Wood Group v Crosson considered re-engagement and whether this remedy is practical in a workplace where there has been a breakdown in trust and confidence between an employer and employee.
Mr Crosson, a lead hand, had been employed by Wood Group for 16 years when he was dismissed following allegations that he had used drugs in the workplace. He was also accused of time keeping and clocking offences. Mr Crosson argued that he had been a victim of a conspiracy and that certain employees were 'out to get him'.
An employment tribunal found that Mr Crosson had been unfairly dismissed as the employers had not carried out all the investigations reasonable in the circumstances nor had they followed a fair procedure. The employers did not tell Mr Crosson when and where he was alleged to have smoked drugs on his employers' premises. In addition the employers did not give him details concerning the false clocking allegations. These failures by the employers meant that Mr Crosson was unable to provide information in his defence which would have justified further investigation. Despite this, however, the tribunal were satisfied that the employers had formed a genuine belief that Mr Crosson was guilty of the allegations against him based on various witness statements from other employees.
Mr Crosson sought the remedy of reinstatement. The tribunal made an order for re-engagement (as the position of lead hand no longer existed). The employers appealed on the issue of re-engagement and the decision was overturned by the EAT. The employers also appealed against the finding of unfair dismissal although this part of the decision of the tribunal was upheld.
In making an order for re-engagement under s115 Employment Rights Act 1996, the tribunal shall take into account a) any wish expressed by the complainant as to the nature of the order to be made b) whether it is practicable for the employer (or successor or an associated employer) to comply with an order for re-engagement, and c) 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 (s116(3)).
The EAT, in this case, were of the belief that it was not practical to order re-engagement because of the finding that the employer genuinely believed in the substance of the allegations. They found it 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.' They went on to confirm their belief that the remedy of reinstatement/re-engagement will only be practical in the rarest of cases.
Also taken into consideration was the fact that Mr Crosson used the defence that there was a conspiracy against him. The employers representative argued that the earlier Court of Appeal decision in Nothman v London Borough of Barnet (No.2) [1980] IRLR 65, should be followed, where the employee thought she had been the victim of a conspiracy by her employers and this factor was considered relevant in justifying a tribunal refusing an order for reinstatement/re-engagement. The EAT agreed.
All factors considered, the EAT found the remedy of re-engagement impractical in this case and allowed the appeal on this point. The matter was referred back to the employment tribunal for them to consider the remedy in monetary terms. This case shows us again that tribunals will only be successful ordering reinstatement or re-engagement in exceptional cases.