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[Thanks to Emma Price of 1 Temple Gardens for preparing this case summary]

The EAT handed down its decision in the case of Central & NW London NHS Trust v Abimbola, dealing with the factors a tribunal must take into account when deciding whether to order reinstatement.

Section 116 of the Employment Rights Act 1996 requires the tribunal to have regard to (a) whether the complainant wishes to be reinstated, (b) whether it is practicable for the employer to comply with an order for reinstatement and (c) where the complainant caused or contributed to his dismissal whether it would be just to order his reinstatement. The EAT held that the existence of mutual trust and confidence between the employer and ex-employee was a relevant factor when addressing the question of practicability of compliance with an order for reinstatement.

The Respondent argued that the ET failed to take into account relevant factors, including, among others, the finding that the Claimant was evasive and on one occasion dishonest in giving evidence at the remedies hearing and the existence of earlier unproven allegations of misconduct prior to the Claimant's dismissal. The EAT held that the ET had erred in taking too narrow a view of s. 116 and deliberately excluding from the exercise of its discretion these relevant factors. The Respondent could not longer be expected to trust the Claimant and the re-instatement order was set aside.