Reinstatement on the rise in Tribunal cases

15 September 2014

Worthingtons have recently acted for a Claimant who has been successfully reinstated to his job.

Worthingtons have recently acted for a Claimant who has been successfully reinstated to his job as a Community Mental Health Nurse within the Northern Health and Social Care Trust – Anthony McErlean v Northern Health and Social Care Trust (1268/13IT).

The Tribunal found that the Claimant had been unfairly dismissed and that the Respondent had failed in its duty to put in place reasonable adjustments to take account of the Claimant’s disability.  The Claimant was awarded £12,000 injury to feelings compensation and the Tribunal directed that he receive full back pay up to the date of reinstatement (13 months), and that his pension and seniority be restored as if he had never been dismissed.

The Claimant was summarily dismissed for gross misconduct following an alleged domestic incident with his wife, which did not result in any charge or prosecution and occurred during a period of significant ill health.

The Tribunal criticised the Respondent’s handling of the disciplinary and, in particular, appeal process.  Evidence was heard from Mrs Graham, Chair of the Appeal Panel, who stated that they did not consider the Disciplinary Panel’s rationale and that the Panel was “uncontaminated and untrammelled” by the previous decision making process.  However, on cross examination, it was accepted by Mrs Graham that she had read the Disciplinary Panel’s discussion notes.  The Tribunal recorded the “remarkable degree of similarity” between the rationale of the Disciplinary Panel and that of the Appeal Panel and found that the appeal process was “far from independent”.  The Appeal Panel had simply “read and regurgitated” the reasoning of the Disciplinary Panel.  

On the subject of whether consideration was given to the fact that the Claimant was mentally ill at the time of the relevant incident, the Tribunal found that Mrs Graham’s answers in cross examination were “vague in the extreme”.  In the course of Mrs Graham’s evidence the Tribunal rose to “allow the parties…to consider their positions” and ultimately concluded that the Appeal Panel “did not seriously consider the Claimant’s case”.

Following conclusion of the evidence in this case, the Respondent conceded that the Claimant had been unfairly dismissed, but continued to oppose the Claimant’s reinstatement.

In ordering reinstatement the Tribunal found that there was no evidence that the Claimant posed any risk to patients or staff, nor did he pose any risk to his family.  The Tribunal found the Trust’s concern on behalf of the Claimant’s wife to be “…in essence, patronising, intrusive and entirely inappropriate” and that it was not for the Trust to “interpose itself into a marital relationship and to seek to exercise some sort of role in that relationship as a result of something which occurred as a result of a mental impairment”.

The Claimant has since made a successful return to the workplace.

Another recent Decision illustrates that successful reinstatement claims are on the rise.  In the case of Graham Davis v B & M Retail Ltd (302/14IT), the majority decision of the Tribunal (with the Employment Judge dissenting) was that the Claimant had been unfairly dismissed and his reinstatement was ordered.  In this case the Claimant was dismissed for allegedly taking an extension lead priced at £4.99 from the B & M Bargains store where he worked without paying for it.  The majority members of the Tribunal concluded that sufficient account had not been taken of the Claimant’s explanation or the various mitigating circumstances, and that therefore the Respondent did not have a reasonable suspicion amounting to the belief in the guilt of the employee of the misconduct at the time of the decision to dismiss.

The McErlean case is one of two successful claims for reinstatement that Worthingtons have been involved in over the last year and highlights that, what was considered to be a relatively uncommon remedy in Tribunal cases, is not only becoming increasingly sought after by Claimants, but perhaps increasingly ordered by Panels.

 

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