The claimant was a long-serving Staff Nurse employed by the respondent NHS Trust in A&E.  During the course of a particularly stressful overnight shift, she had administered medication to four patients without prior prescription by a doctor and failed to properly complete records.  She was dismissed for her conduct in these respects and because the respondent considered she had failed to be honest in her initial response to the investigation when she said her record keeping had been satisfactory.

On the claimant’s complaints of unfair and wrongful dismissal, the ET found she had been unfairly but not wrongfully dismissed; specifically, she had administered medication without prescription and failed in her record keeping but the respondent had not shown reasonable grounds for its conclusion as to her dishonesty in that respect.

After a remedies hearing the tribunal awarded reengagement, arguing that the employer had not shown dishonesty and that they believed the claimant could be employed in a nurse in some other capacity. That is the wrong test, according to the EAT.

When it comes to considering reinstatement or reengagement, which a tribunal must do should a claimant seek it, the tribunal must consider the specific employer's contention that reinstatement or reengagement is not practicable for any reasons stated, in this case a breakdown in trust and confidence. In this instance, the tribunal's approach was more akin to the tribunal standing in the shoes of the employer and substituting its own view for that of a reasonable employer, which may be appropriate when considering the overall fairness of a decision to dismiss but is not appropriate when considering the practicalities of reinstatement or reengagement as alternative remedies to compensation:

"The ET also needed to consider whether the Respondent had made good its case that trust and confidence could not be repaired, whether its belief in her dishonesty was such that a re-engagement order was unlikely to be carried into effect with success.  The ET was thus entitled to scrutinise whether the Respondent’s stated belief was genuinely and rationally held, tested against the other factors the ET considered relevant.  It was, however, still a question to be tested from the perspective of the Respondent, not that of another employer, still less that of the ET: was it practicable to order this employer to re-engage this Claimant?"
http://www.bailii.org/uk/cases/UKEAT/2016/0198_16_1411.html