Labour & European Law Review Weekly Issue 508 22 February 2017
When considering an order for re-engagement, the Employment Appeal Tribunal (EAT) held in United Lincolnshire Hospitals NHS Foundation Trust v Farren, that tribunals have to ask whether it was practicable to order this particular employer to re-engage this particular claimant, as opposed to applying their own test.
Ms Farren, a staff nurse in A&E, was on duty when a young boy died after having a cardiac arrest. She gave the drug Diazepam to four of the adult family members without prescription from a doctor, which was in breach of hospital policy. She asked a doctor, Dr Naqvi, to write up the prescription after the event. The doctor did so, despite not having seen any of the patients.
The matter came to the hospital’s attention when Dr Naqvi informed an A & E specialty meeting on 20 May 2014 what had happened. In the course of the investigation, Ms Farren refused to accept that she administered the drugs in breach of policy (on the basis that Dr Naqvi had prescribed them) although she did accept that her record-keeping had been inadequate. She was summarily dismissed for misconduct and dishonesty.
Ms Farren brought claims for unfair and wrongful dismissal.
Although the tribunal accepted that the hospital had a potentially fair reason for dismissal (conduct), it concluded that it was unfair to dismiss Ms Farren for that reason as they had assumed from the start of the investigation that she was guilty. There were also procedural failings, in particular at the appeal stage, which rendered the process unfair.
As for the wrongful dismissal claim, the tribunal accepted that Ms Farren had given the drugs without prior authority, which was clearly in breach of hospital policy. This amounted to serious professional misconduct and provided grounds for summary dismissal under the hospital’s disciplinary procedure.
At the subsequent remedy hearing, the tribunal ordered the hospital to re-engage Ms Farren, albeit outside A&E, despite evidence from the hospital that to do so would undermine their policy on administering medicines which raised patient protection issues and questions of public trust. The hospital also made clear that it had lost trust and confidence in Ms Farren as a registered nurse, given her misconduct in administering medication to four patients without prior prescription and her dishonesty in failing to admit what she had done.
It appealed against the tribunal re-engagement order, arguing (among other things) that the tribunal had wrongly applied its own test as to whether Ms Farren was dishonest, rather than asking whether a reasonable employer would have come to that conclusion.
The EAT agreed, holding that the tribunal should have asked whether this employer genuinely believed that Ms Farren had been dishonest, and whether that belief had a rational basis as it was they who had to re-engage her.
Although the tribunal was entitled to scrutinise whether the hospital “genuinely and rationally held” its belief that it could no longer trust her, it should have done that from the perspective of the hospital, not another employer, still less that of the tribunal. The question it should have asked was whether it was practicable to order this employer to re-engage this claimant?
As the tribunal had not done this, the EAT remitted the matter so that it could reconsider its approach.
After upholding a claim for unfair dismissal, tribunals must consider reinstatement, then re-engagement before any award for compensation only. However, this case highlights the relatively low threshold for employers to show re-engagement is not reasonably practicable.