The Employment Appeal Tribunal (EAT) in Lincolnshire County Council v Lupton has held that, when making an order for reengagement, tribunals must take into account whether it is “practicable” for the employer to comply. They must also specify the nature of the employment in which the claimant is to be re-engaged “with a degree of detail and precision”.

Basic facts

Ms Lupton, a part-time support worker at the Earlsfield youth centre in Grantham from 2010, had an arrangement with the Council from 2012 that she did not need to work during school holidays or outside school hours. When she refused to change her hours at the Council’s request in 2014, she was dismissed.

She claimed unfair dismissal and asked either to be reinstated or reengaged to one of two specific roles at the Earlsfield Centre.

Tribunal decision

The tribunal found that there was no sound business reason for the change in hours; that the process adopted by the Council in seeking to enforce the change had been unfair; and that it had failed to consider alternatives to dismissing her.

Although Ms Lupton had asked to be reinstated into her old job (because of her need for flexible working hours), the tribunal concluded that was not practical as the relationship between the parties had broken down irretrievably. Likewise, she could not be re-engaged into either of the two roles she had specified. However, it made a general order for re-engagement on the basis that the Council was one of the largest employers in the area and had a number of vacancies based in schools which would allow Ms Lupton to work term-time only. It also noted that the Council had not addressed the issue of re-engagement nor had it said if it would be impracticable.

The Council appealed, arguing that as Ms Lupton had not requested re-engagement in any other role other than the two she had specified at the Earlsfield Centre, the tribunal had failed to have proper regard to section 116(3)(a) of the Employment Rights Act (ERA). Nor had it addressed itself to the issue of “practicability” of re-engagement as required under section 116(3)(b). Finally, it argued that the tribunal failed to identify the nature of the employment to which Ms Lupton was to be re-engaged with any degree of detail and precision, contrary to section 115(2)(b) ERA.

EAT decision

The EAT held that although it did not think the tribunal had made an error of law in making a wider re-engagement order than Ms Lupton had requested, the decision was procedurally unfair as the tribunal had not told the Council in advance of its thinking. As a result, the Council could not make submissions as to which jobs were within its remit and which were available for flexible working.

In relation to the issue of practicability, the EAT held that tribunals need to take a broad, commonsense approach. In this context, “practicable” did not mean that employers were required to find a suitable alternative job for a dismissed employee. The question at the end of the day was one of fact and degree by reference to what was “capable of being carried into effect with success”. As most of the jobs identified by the tribunal were probably not suitable for Ms Lupton, “practicability” had not been established.

It also agreed that the tribunal had failed to identify the nature of the employment to which Ms Lupton was to be re-engaged with any degree of detail and precision, contrary to section 115(2)(b) ERA.