Central & North West London NHS Foundation Trust v Abimbola, United Kingdom Employment Appeal Tribunal, Judgment, Law, casemine.com

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Attorney(S)

MR KEITH MORTON (of Counsel) Instructed by: Messrs Radcliffes LeBrasseur Solicitors 5 Great College Street Westminster London SW1P 3SJ
MR JAKE DUTTON (Solicitor) ieLaw Solicitors Nova Building Herschel Street Slough Berks SL1 1XS

Judges

MR B M WARMAN
MR A HARRIS
JUDGE PETER CLARK

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Central & North West London NHS Foundation Trust v. Abimbola

Smart Summary

Factual and Procedural Background

The Plaintiff was employed as a Band 5 Psychiatric Nurse at The Hospital from 1 February 2000 until summary dismissal on 5 March 2007 by Company A on grounds of alleged gross misconduct. The incident leading to dismissal occurred during night duty on 12/13 June 2006, involving the restraint of a patient who was agitated and armed with a kitchen fork. There was a dispute whether the Plaintiff held the patient in a headlock, which the Plaintiff denied. Disciplinary proceedings followed, including a suspension related to a separate allegation, culminating in dismissal for alleged assault on the patient in June 2006. The Plaintiff brought a claim of unfair dismissal to the Employment Tribunal, which found in his favor, concluding that Company A lacked reasonable grounds for their genuine belief in the misconduct. The Tribunal ordered reinstatement and payment of arrears. Company A appealed against the reinstatement order to the Employment Appeal Tribunal.

Legal Issues Presented

Whether the Employment Tribunal erred in law by failing to consider relevant factors in deciding the practicability of reinstatement under section 116(1) of the Employment Rights Act 1996.
Whether the Employment Tribunal's order for reinstatement was within the range of reasonable responses given the breakdown of mutual trust and confidence.
The scope of discretion of Employment Tribunals in ordering reinstatement and the proper approach to the practicability test at the remedy hearing stage.

Arguments of the Parties

Appellant's Arguments

The Employment Tribunal improperly excluded relevant factors from its discretion under section 116(1) ERA when deciding on reinstatement.
The Plaintiff's dishonest evidence regarding loss of earnings at the remedy hearing undermined trust and was a relevant consideration for practicability.
The final written warning and underlying assault allegation, although not contributing to dismissal, were relevant to trust and confidence and thus practicability.
Three unproven complaints of sexual misconduct against the Plaintiff cumulatively undermined Company A’s trust and confidence, affecting practicability of reinstatement.
The genuine belief by Company A in the Plaintiff’s guilt regarding the headlock incident was a relevant factor for the Tribunal to consider in deciding on reinstatement.

Appellee's Arguments

Accepted that Company A had a genuine belief in the misconduct, conducted a reasonable investigation, and that dismissal was within the range of reasonable responses.
Argued that the Employment Tribunal was restricted to the three mandatory factors in section 116(1) ERA and could not take into account the Plaintiff’s dishonesty at the remedy hearing, citing an obiter remark from a prior case.
Maintained that the Tribunal’s discretion was properly exercised and that loss of trust and confidence due to dishonesty was not a relevant factor for reinstatement.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
A v B [2002] IRLR 405	Approach to fairness in conduct-related dismissal and necessity of an even-handed investigation.	Guided the Tribunal's assessment of whether Company A had a genuine belief based on reasonable grounds.
ILEA v Gravett [1988] IRLR 497	Consideration of mutual trust and confidence in re-engagement orders; impracticability where trust is lost.	Used as a benchmark for assessing practicability of reinstatement given the duty of care owed by Company A.
Port of London Authority v Payne [1994] IRLR 9	Two-stage approach to reinstatement: provisional practicability determination at first remedy hearing and final at second hearing.	Clarified the Tribunal’s discretion and process in ordering reinstatement and assessing practicability.
Timex Corporation v Thomson [1981] IRLR 522	At the first stage, Tribunal must consider practicability but need not make a definite finding.	Supported the approach to provisional determination of practicability at remedy hearing.
Warner Brothers v Nelson [1937] 1KB 209	Principle that a party cannot be forced to work against their will.	Analogous principle explaining limits on enforcement of reinstatement orders.
Coleman v Magnet Joinery Ltd [1975] ICR 46	Re-engagement not practicable if it would lead to industrial strife or loss of mutual trust and confidence.	Supported the view that reinstatement must be practicable beyond mere possibility.
Nothman v London Borough of Barnet (No. 2) [1980] IRLR 65	Loss of trust and confidence by employee can make reinstatement inappropriate.	Illustrated that breakdown in trust can be on either side affecting practicability.
Wood Group Heavy Industrial Turbines Ltd v Crossan [1998] IRLR 680	Dismissal unfair due to procedural defects but breakdown in trust can make reinstatement impracticable.	Supported the consideration of trust and confidence in deciding reinstatement practicability.
Yeboah v Crofton [2002] IRLR 634	High threshold for perversity in appeals against reinstatement orders.	Reinforced that appeals must show error of law rather than mere disagreement with Tribunal’s factual conclusions.
Clancy v Cannock Chase Technical College [2001] IRLR 331	Observations on re-engagement and appeal standards.	Used to emphasize the limited scope of appeals on reinstatement decisions.
Devis v Atkins [1977] ICR 662	Obiter: Employee misconduct not relevant to reinstatement discretion.	Discussed by parties but ultimately not persuasive against considering trust and confidence.

Court's Reasoning and Analysis

The court analysed the Employment Tribunal’s exercise of discretion under section 116(1) of the Employment Rights Act 1996 regarding reinstatement. It acknowledged the Tribunal’s provisional determination of practicability at the first remedy hearing, as established by precedent. However, the court found that the Tribunal erred by excluding relevant factors from its consideration, notably the Plaintiff’s dishonesty at the remedy hearing, the existence of a final written warning, and prior unproven sexual misconduct allegations. These factors cumulatively impacted the mutual trust and confidence essential for practicability of reinstatement, especially given the sensitive nature of the Plaintiff’s role involving vulnerable patients.

The court rejected the argument that the Tribunal was limited to the three mandatory factors listed in section 116(1), holding that loss of trust and confidence is a relevant consideration supported by established case law. The court further noted that the Tribunal's failure to consider these factors amounted to an error of law. It emphasized that the appeal court’s role was not to retry the facts but to correct legal errors, and found the Tribunal’s narrow approach legally flawed.

Applying these principles, the court concluded that the reinstatement order was not practicable because Company A could no longer be expected to trust the Plaintiff. The court therefore allowed the appeal, set aside the reinstatement order, and remitted the case for assessment of compensation.

Holding and Implications

The appeal was allowed, the reinstatement order was set aside, and the matter was remitted to the Employment Tribunal for assessment of compensation.

The direct consequence of this decision is that the Plaintiff will not be reinstated to his former position. Instead, the case will proceed to determine appropriate compensation awards. No new legal precedent was established; rather, the decision reaffirmed existing principles that reinstatement requires mutual trust and confidence and that Employment Tribunals must consider all relevant factors, including conduct and prior warnings, when exercising their discretion under section 116(1) ERA.