Introduction

The case of Central & North West London NHS Foundation Trust v. Abimbola ([2009] UKEAT 0542_08_0304) is a pivotal Employment Appeal Tribunal (EAT) decision that addresses the complexities surrounding unfair dismissal remedies, particularly reinstatement orders. The parties involved are Mr. Abimbola, the Claimant, and Central & Northwest London NHS Foundation Trust, the Respondent. The crux of the dispute centers on Mr. Abimbola's summary dismissal on allegations of gross misconduct and the subsequent appeal against an Employment Tribunal's order for his reinstatement.

Summary of the Judgment

Mr. Abimbola, a seasoned Psychiatric Nurse with over two decades of experience, was dismissed by the Respondent for alleged gross misconduct following an incident involving a patient who became agitated. The Employment Tribunal initially found the dismissal to be unfair, ordering Mr. Abimbola's reinstatement. The Respondent appealed this decision, challenging the order on the grounds of practicability, arguing that factors such as dishonesty in proceedings and previous allegations of misconduct made reinstatement untenable. The EAT ultimately upheld the appeal, setting aside the reinstatement order and remitting the case for compensation assessment.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents to inform its decision:

• A v B [2002] IRLR 405: Emphasizes the necessity of an even-handed approach in investigations, especially in cases involving serious or criminal allegations.
• ILEA v Gravett [1988] IRLR 497: Highlights the importance of considering mutual trust and confidence in the practicability of reinstatement.
• Port of London Authority v Payne [1994] IRLR 9: Outlines the two-stage approach to reinstatement, emphasizing initial provisional determinations of practicability.
• Nothman v London Borough of Barnet (No. 2) [1980] IRLR 65: Demonstrates how an employee's loss of trust can make reinstatement inappropriate.
• Wood Group Heavy Industrial Turbines Ltd v Crossan [1998] IRLR 680: Reinforces that a genuine belief in an employee's misconduct can render reinstatement impracticable.
• Coleman v Magnet Joinery Ltd [1975] ICR 46: Establishes that practicability goes beyond mere possibility, factoring in potential industrial strife and loss of trust.

Legal Reasoning

The EAT concentrated on the concept of "practicability" regarding reinstatement orders under the Employment Rights Act 1996 (ERA). The Tribunal must assess:

• Whether the complainant desires reinstatement.
• The practicability of the employer complying with such an order.
• If reinstatement is just given any contributory factors from the employee.

In this case, while the Employment Tribunal found reinstatement practicable, the EAT identified critical oversights:

• Dishonesty in Proceedings: Mr. Abimbola's inconsistent statements regarding his post-dismissal employment raised trust issues.
• Final Warning: Previous allegations of assault, although not directly linked to the dismissal incident, eroded mutual trust.
• Unproven Complaints of Sexual Misconduct: Accusations, even if unsubstantiated, cumulatively affected the trustworthiness of the Claimant.
• Genuine Belief in Misconduct: The Respondent's authentic belief in Mr. Abimbola's wrongdoing further complicated the practicability of reinstatement.

The EAT posited that these factors collectively undermined the Respondent's ability to trust Mr. Abimbola, making reinstatement impracticable despite the Employment Tribunal's initial findings.

Impact

This judgment underscores the nuanced approach required when Employment Tribunals consider reinstatement orders. It highlights that tribunals must thoroughly evaluate all relevant factors impacting the practicability of such orders, including trustworthiness and historical conduct. The decision reinforces the principle that reinstatement is not a blanket remedy but one that must reflect the specific circumstances of each case. Future cases involving unfair dismissal will need to meticulously balance the right to reinstatement against the employer's capacity to re-establish a functional employment relationship.

Complex Concepts Simplified

Practicability of Reinstatement

Practicability refers to whether it is realistic and feasible for an employer to reinstate an employee to their former position without causing further issues. It considers factors like mutual trust, the nature of the dismissal, and potential for workplace disruption.

Burchell Test

The Burchell Test is a three-part test used to determine if an employer had a genuine belief in an employee's misconduct, based on reasonable grounds after a reasonable investigation, and whether the disciplinary action taken was a reasonable response.

Mutual Trust and Confidence

This principle implies that both employer and employee must maintain trust in each other. A significant breach, such as dishonesty or serious misconduct, can erode this trust, making reinstatement difficult.

Reinstatement vs. Re-engagement

Reinstatement means returning the employee to their previous role with the same terms and conditions, treating as if they were never dismissed. Re-engagement involves placing the employee in a different but comparable position, potentially with different terms.

Conclusion

The case of Central & North West London NHS Foundation Trust v. Abimbola serves as a critical reference point in employment law, particularly concerning the issuance of reinstatement orders following unfair dismissal. The EAT's decision emphasizes that reinstatement must be practically feasible, factoring in the integrity of the employee, the circumstances surrounding the dismissal, and the potential impact on the workplace environment. By setting aside the Employment Tribunal's reinstatement order, the EAT reinforced the importance of comprehensive evaluations in remedy hearings, ensuring that reinstatement serves the best interests of both parties. This judgment not only clarifies the application of existing legal principles but also guides future tribunals in balancing fairness with practical considerations in employment disputes.