May 26, 2016

Re-engagement Order insufficiently precise

The Claimant had been dismissed from her role as a support worker when she was unable to agree to changing her working hours because she was a foster carer, which meant she could no longer work during school holidays or outside school hours. She was sacked. She lodged a claim requesting reinstatement into her old role or re-engagement into one of two roles in the same centre at which she had worked which were available when she was dismissed.

In the Tribunal’s re-engagement order it noted that the council had a list of 78 vacancies which had been available in April/May 2015 and there were several based in schools which could meet the need for the Claimant to work term time only. It also considered that the council had not addressed why reengagement was not practicable, which was a key consideration to be taken into account in deciding whether or not to order this.

The council appealed, arguing that the Tribunal had not addressed the issue of practicability of reengagement and had not identified the nature of the employment into which the Claimant was to be re-engaged.

The EAT held that a broad common sense approach was required to deal with the matter of practicability. The council had not addressed this in relation to wider re-engagement beyond the 2 roles which the Claimant had identified and as such the Tribunal had limited material on which to consider this issue. In fact, when properly considered, none of the 78 available jobs were suitable for a variety of reasons.

The EAT held that the re-engagement order could not stand and the matter will be remitted for reconsideration. In doing so it commented that the terms of a re-engagement order must be specified with a degree of detail and precision and the Tribunal’s current order did not satisfy this requirement.

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