In British Council v Sellers, the EAT has ruled that an Employment Tribunal should not have ordered the re-engagement of an employee who had been unfairly dismissed following an allegation of sexual misconduct.
Following a finding of unfair dismissal, instead of receiving compensation, an employee may ask the Employment Tribunal for an order that they be reinstated to their previous role or re-engaged in a comparable role on terms specified by the Tribunal. This will include pay and benefits for the period between dismissal and the re-engagement order. When exercising its discretion to make a reinstatement or re-engagement order, the Tribunal must consider whether it would be practicable for the employer to comply and, if relevant, whether the employee caused or contributed to their dismissal. Failure to comply with an order for reinstatement or re-engagement will result in an additional award of compensation unless the employer can show that compliance was not practicable.
Mr Sellers had been employed by the British Council since 1990, most recently as Country Director for Italy, with responsibility for all aspects of the Council’s Italian operations. He was dismissed for gross misconduct in 2019 following allegations of inappropriate sexual conduct at a British Council social event. The Council rejected his appeal against dismissal and also refused his request to reopen the matter after further evidence was submitted by a third party.
The Employment Tribunal upheld Mr Sellers’ claim for unfair dismissal, finding that although the decision-maker genuinely believed he had committed the alleged misconduct, that belief was unreasonably derived from a flawed investigation. The appeal process had failed to rectify those procedural deficiencies. Although generally it might not be unfair to ignore a request to reopen a dismissal decision after an appeal had been concluded, the Tribunal also held that this case was an exception, not least because the British Council’s policy allowed for this possibility. In the Tribunal’s view, if the later evidence had been accepted, it was likely that the dismissal would have been set aside.
However, following the unfair dismissal finding, the British Council commissioned a fresh, independent investigation which upheld the original finding of gross misconduct.
At the remedies hearing, Mr Seller sought re-engagement. The Council argued that this would be impracticable due to a loss of trust and confidence in Mr Sellers as well as an intervening organisational restructuring which involved redundancies. The Tribunal considered itself bound to assess the issue of contributory conduct and found that, on the balance of probabilities, the alleged assault had not occurred. In the Tribunal’s view, the later independent investigation had been undertaken to resist an application for re-engagement, not as a genuine attempt to rectify previous errors. The Tribunal therefore made an order for re-engagement.
Allowing the British Council’s appeal, the EAT has now set aside the re-engagement order. It held that the Tribunal had exceeded its remit by considering whether Mr Sellers had caused or contributed to his dismissal when this argument had not been raised by his employer. Crucially, the Tribunal had also failed to assess the practicability of re-engagement from the employer’s perspective, for example, by scrutinising the quality of the independent investigation and substituting its own view rather than focusing on whether the Council’s belief in Mr Sellers’ misconduct was genuine and rationally held.
Tribunals have considerable discretion when determining whether to order reinstatement or re-engagement, but in practice orders are rarely granted. Since practicability will often depend on whether trust and confidence can be restored between the parties, employers should ensure that any concerns about loss of trust and confidence are properly reasoned and documented. This will help demonstrate a genuine and rational belief that the relationship has broken down. It is also important to note that practicability will be determined as of the date of the remedies hearing, not at the date of dismissal.
