Appeal No. UKEAT/0364/12/MC
UKEAT/0365/12/MC

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

	At the Tribunal
	On 31 January 2013
	   Judgment handed down on 17 May 2013

Before
THE HONOURABLE MR JUSTICE UNDERHILL 
MR D G LEWIS
MR D NORMAN

UKEAT/0364/12/MC

OASIS COMMUNITY LEARNING	APPELLANT

MR B WOLFF	RESPONDENT

UKEAT/0365/12/MC

MR B WOLFF	APPELLANT

OASIS COMMUNITY LEARNING	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For Oasis Community Learning	MR CHRISTOPHER JEANS
(One of Her Majesty’s Counsel)
Instructed by:
Berry Smith LLP
Haywood House
Dumfries Place
Cardiff
CF10 3GA	
For Mr B Wolff	MR B WOLFF
(In Person)	

SUMMARY

UNFAIR DISMISSAL – Reinstatement/Re-engagement

Claimant a teacher working for an institution responsible for schools in different parts of the country – Held to have been unfairly dismissed – In correspondence connected with the proceedings makes allegations of misconduct against the Respondent as an institution and members of its HR Department – Tribunal holds that those allegations were not such as to render it impracticable for him to be re-engaged at a different school in a different part of the country

HELD, dismissing the appeal, that on the particular facts of the case the Tribunal was entitled to make a re-engagement order – Nothman v London Borough of Barnet (no. 2) [1980] IRLR 65 and Wood Group Heavy Industrial Turbines Ltd. v Crossan [1998] IRLR 680 distinguished

THE HONOURABLE MR JUSTICE UNDERHILL 
INTRODUCTION
1.	The Claimant in these proceedings is a teacher.  The Respondent, to which we will refer as “Oasis”, is a company which specialises in taking over and turning round failing schools.  The Claimant was engaged by it on 11 March 2008 as Learning Director of Maths at a school in Immingham which it was managing.  He was suspended in April 2009 because of a number of allegations about his conduct toward pupils.  We should make it clear from the start that there has never been any question of sexual misconduct or violence: the allegations essentially revolve around his style in dealing with difficult pupils, which is said to have been too confrontational.  Disciplinary proceedings ensued.  They were complicated by the fact that the Claimant fell ill.  But eventually, following a hearing which he did not attend and which focused on one particular incident, the Claimant was dismissed with effect from 19 May 2010.

2.	The Claimant brought proceedings in the Employment Tribunal claiming for unfair dismissal, victimisation contrary to the Race Relations Act 1976 and detriment contrary to the whistleblower provisions.  The claim was heard over four days in Hull in September 2011 before a Tribunal chaired by Employment Judge Grazin.  The Claimant was unrepresented.  Oasis was represented by Mr Steven Flynn of counsel.  At an early stage the Claimant withdrew the victimisation and whistleblower claims.  It became increasingly clear that there had been serious defects in the way in which his dismissal had been handled, and on the fourth day Oasis agreed to a finding that he had been unfairly dismissed.  A formal judgment reflecting those outcomes was sent to the parties on 26 September 2011.

3.	A remedy hearing took place before the same Tribunal on 28 February 2012.  The Tribunal made a re-engagement order under section 115 of the Employment Rights Act 1996.  The terms of the order were specified, as required by section 115 (2).  We will return to certain of the terms in due course.  At this stage it is necessary only to note:

(a)	that the Claimant was to be engaged at a different school, the Shirley Park Academy in Croydon;

(b)	that the re-engagement was to occur no later than 9 April 2012; and

(c)	that he was to be engaged at a salary of £40,433 p.a.  

Although the formal Judgment and Reasons were not sent to the parties until 19 March 2012 the Tribunal, which we are told took “a robust and interventionist approach”, to which the parties responded, had made it clear at the hearing what course it favoured and had discussed with the parties the terms on which the Claimant might be re-engaged.

4.	Both parties have appealed against that order – Oasis against the making of a re-engagement order at all, and the Claimant against (a) the failure to make a reinstatement order and (b) the prescribed rate of salary.  However the day before the hearing the Claimant notified this Tribunal by e-mail that element (a) was not being pursued.

5.	Despite having appealed, Oasis complied with the re-engagement order, and at the time of the hearing before us the Claimant was working at Shirley Park.  He and Oasis gave different accounts about how well things were going; but we declined to hear any detail since it was immaterial to the issues which we have to decide.  It is not in fact clear what the practical consequences would be of either outcome of this appeal; but the Claimant made it clear to us that he attaches great importance to the re-engagement order as a clear indication that the Tribunal found that there was no reason why he should not work with children.  

6.	Before us the Claimant again appeared in person.  Oasis was represented by Mr Christopher Jeans Q.C.

OASIS’s APPEAL

THE STATUTORY PROVISIONS

7.	Section 112 of the 1996 Act provides, so far as relevant, as follows:
“(1)     This section applies where, on a complaint under section 111 [i.e. of unfair dismissal], an employment tribunal finds that the grounds of the complaint are well-founded.
(2)     The tribunal shall - 
  (a)    explain to the complainant what orders may be made under  Section 113 and in what circumstances they may be made, and
(b)    ask him whether he wishes the tribunal to make such an order.
(3)     If the complainant expresses such a wish, the tribunal may make an order under section 113.
(4)     If no order is made under section 113, the tribunal shall make an award of compensation for unfair dismissal ...”
Section 113 provides:

“An order under this section may be - 
(a)     an order for reinstatement (in accordance with section 114), or
(b)     an order for re-engagement (in accordance with section 115),
as the tribunal may decide.”

8.	A re-engagement order is defined in section 115 as follows:
“(1)     An order for re-engagement is an order, on such terms as the tribunal may decide, that the complainant be engaged by the employer, or by a successor of the employer or by an associated employer, in employment comparable to that from which he was dismissed or other suitable employment.
(2)     On making an order for re-engagement the tribunal shall specify the terms on which re-engagement is to take place, including - 
(a)     the identity of the employer,
(b)     the nature of the employment,
(c)     the remuneration for the employment,
(d)     any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of re-engagement,
(e)     any rights and privileges (including seniority and pension rights) which must be restored to the employee, and
(f)     the date by which the order must be complied with.
(3)    . . .”

9.	Section 116 gives guidance about the exercise of the discretion whether to order reinstatement or re-engagement.  It reads, so far as material, as follows:

“(1)     In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account -
(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 some extent to the dismissal, whether it would be just to order his reinstatement.
(2)     If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms.
(3)     In so doing the tribunal shall take into account—
(a)     any wish expressed by the complainant as to the nature of the order to be made,
(b)     whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and
(c)     where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms.
(4)     Except in a case where the tribunal takes into account contributory fault under subsection (3)(c) it shall, if it orders re-engagement, do so on terms which are, so far as is reasonably practicable, as favourable as an order for reinstatement.
(5)-(6) …”

10.	The effect of those provisions is that in a case where an unfairly dismissed employee wishes to be reinstated or re-engaged the tribunal must first consider whether to make such an order and should only make a compensatory award when it has made a positive decision against reinstatement or re-engagement.  It is sometimes said that this reflects the intention of Parliament that reinstatement or re-engagement, rather than pecuniary compensation, should be the “primary” remedy for unfair dismissal or that there is a “presumption” in their favour.  That is in one sense true, but it is necessary nevertheless to appreciate the form in which that intention, or presumption, is enacted.  It consists simply in providing that those remedies be considered first: on such consideration the Tribunal’s discretion is a general one, albeit that section 116 prescribes certain specific factors to which it has to have regard.  It is of course well-known that orders for reinstatement and re-engagement are made in only a very small proportion of successful unfair dismissal cases (though the figures do not exist to ascertain to what extend that is because they are not sought rather than because they have been refused).

OASIS’s CASE BEFORE THE TRIBUNAL AND THE EVIDENCE

11.	The Claimant initially appeared to seek reinstatement, with re-engagement only as a fallback.  It was Oasis’s case that neither a reinstatement nor a re-engagement order should be made because it would not be practicable for it to comply with it – see section 116 (1) (b) and (3) (b).  The Tribunal recorded at paragraph 3 of its Reasons that the Claimant abandoned his claim for reinstatement.  As it put it:
“In formal discussion between the parties and the Tribunal before hearing any evidence, the Claimant accepted that, in the light of any differences between himself and his former colleagues at the Respondent’s Immingham Academy, it would not be practicable to seek reinstatement, either in his previous position or in any other position, at Immingham.  Indeed, the Claimant accepted that he had made it clear, in the Case Management Discussion at the conclusion of the original Hearing, that he was prepared to work the Respondent anywhere within the United Kingdom.  It therefore seemed to the Tribunal that if a Reinstatement/Re-engagement Order was to be made at all, it could only be made on the basis that the Claimant was employed elsewhere, i.e. that the Claimant would be re-engaged rather than reinstated.  The Claimant accepted that position and the Tribunal was not therefore required to make any decisions as to the practicability of the Claimant returning to Immingham.”
Thus the only issue which the Tribunal considered was re-engagement.  It had been established prior to the hearing, and was confirmed by Oasis, that it had vacancies for a maths teacher at two of its schools, one in Bristol and the other at Shirley Park.

12.	In resisting the making of an order for reinstatement or re-engagement Oasis relied on a witness statement from Ms Sarah Graham of its HR Department, of which we were (belatedly) given a copy.  It dealt with two matters:-

(1)	Oasis had referred the Claimant to the General Teaching Council for England (“the GTCE”) and the Independent Safeguarding Authority (“the ISA”), on the basis of essentially the same allegations as had been made in the disciplinary proceedings against him.  She set out the history of the referrals, including the fact that both had been concluded in his favour.  The Tribunal had previously ordered disclosure of the relevant documents, but she explained why Oasis had not felt able to disclose three particular witness statements.  It is not clear what materiality all this had to the issue of re-engagement.

(2)	Ms Graham complained that since the beginning of the dispute the Claimant had harassed Oasis and members of its staff with aggressive correspondence making offensive and untrue allegations, including allegations that it had fabricated evidence, and had persisted in doing so despite being asked to correspond only with Oasis’s solicitors.  He had also made complaints to the ISA and to the regulatory body for academies, the Young People’s Learning Agency (“the YPLA”).  The final paragraph reads:

“Given the Claimant’s conduct as set out above, I do not consider re-employment to be an option.  In addition to the Claimant’s continued and repeated harassment of the Respondent’s employees, the Claimant has made numerous and serious unfounded allegations against the Respondent and members of its staff and in particular those staff within the HR department, without providing any supporting evidence.  His conduct has been aggressive and has caused significant distress to the members of staff involved and it would be unreasonable for those staff members to be expected to work with the Claimant in the future.  I consider that the relationship between the Claimant and Respondent has broken down irreparably and re-employment is simply not feasible.”
Both the referrals to the GTCE and ISA and the correspondence on which Ms Graham relied were put before the Tribunal.

13.	Ms Graham gave oral evidence in chief.  At paragraphs 14 and 15 of the Reasons the Tribunal says:
“14. Ms Graham went further in her oral evidence than she had in her witness statement.  She contended that the Claimant was vindictive and vexatious; and that he was not fit to teach anybody.  The Claimant had allegedly refused to allow himself to be observed in lessons, a matter that was regarded as very serious within the teaching profession.  In short, in the light of the allegations that the Claimant had made and the manner in which he conducted himself, it would not be practicable to re-engage him, because he would make similar allegations against the Respondent organisation as a whole.
15. Finally, for our purposes, she contended that because the Claimant had been severely critical of the Respondent’s HR Department, nobody within that Department could properly manage him as part of their normal function…”
It also appears that she alleged that at the school at which he had taught for a year following his dismissal, Fulwood Academy, he had failed an observation; and that she described the Claimant as having alleged that he was the victim of a conspiracy.

14.	The Claimant sought to cross-examine Ms Graham in order to establish that the allegations which had originally been made against him, and which had been repeated to the GTCE and the ISA, were untrue.  As it records at paragraph 10 of the Reasons, the Tribunal stopped that cross-examination when it became clear that Ms Graham (who had only become involved in the case many months after the original investigation) had no first-hand knowledge.  It said:
“Mr Flynn agreed that, if the Claimant was to ask similar questions of Ms Graham in respect of each of the allegations which she had made to the GTCE, the answer would be similar, namely that Ms Graham was simply reporting that which had been reported to her.  Equally, if the Claimant gave evidence on each of those matters, he would deny that there had been such misconduct.  A number of examples were put before the Tribunal and it appeared that the Claimant would be able to satisfy the Tribunal, on what would, in effect, be unchallenged direct evidence, that the allegations of impropriety made against him were largely unsubstantiated.  It was, of course, the case that the Claimant had only been accused in disciplinary proceedings of the matters which were the subject of the original Hearing and it was accepted that he was unfairly dismissed in respect of those allegations.  Whatever other allegations had been made to the GTCE and/or the ISA, they had not been the subject of any formal disciplinary processes.  The Tribunal therefore proceeded, as all parties agreed, on the basis that the Claimant had not committed any such further misconduct as had been alleged in that correspondence.”

15.	The Claimant himself gave evidence.  The Tribunal records the evidence, and its conclusions on it, as follows:
“16. The Claimant denied that he was vindictive and/or vexatious.  He denied that he had refused to allow an observation.  He accepted that he had failed an observation at Fulwood Academy but explained why that was, by reference to the conduct of the relevant students.
17. We were impressed by the evidence of the Claimant.  The Claimant described himself as a man of principle and, insofar as he has taken up the case of at least one other colleague at Immingham Academy, that is clearly the case.  He was not prepared to let matters, which he considered to be wrongdoing, pass without taking an active role to prevent such events reoccurring.  We accepted from him that numerous of the allegations which had been made by Ms Graham in correspondence could not be justified.  On the facts of these allegations, so far as they are material to the issue we need to decide, we accept from the Claimant that they are largely allegations which have been untested and unproven. We treated the Claimant as a person who has not been proved to have committed any one or more of the very serious allegations of misconduct made against him.  Accordingly, there is no reason why he should not be treated as a person who can properly teach secondary age school children.”
16.	Mr Jeans took us through the key points in the documents which he said had been relied on before the Tribunal as demonstrating that the relationship between the Claimant and Oasis was such as to render re-engagement impracticable.  They can be summarised as follows:

(1)	In an email dated 17 January 2011 to Ms Graham the Claimant describes the evidence of a colleague on which Oasis was relying as “fabricated” and raises the possibility of “collusion” between that colleague and another potential witness.

(2)	In his lengthy witness statement for the purpose of the liability hearing before the Tribunal the Claimant describes the Chair of Oasis’s Board, the Rev Wes Sutton, as having “abrogated his responsibilities in order to allow the Respondent’s HR department to suppress evidence”.  The statement includes an appendix headed “Falsification of Documents relating to the Local Safeguarding Children’s Board” which alleges that a colleague at Oasis and the Child Protection Facilitator at Lincolnshire Council backdated their signatures on a document submitted to the Board.   

(3)	On 19 January 2012, i.e. in the interval before the liability and remedy hearings, Oasis’s solicitors asked the Claimant to cease trying to contact the Chief Executive’s Office.  He responded by writing to Oasis’s Founder, the Rev Steve Chalke, on 24 January 2012.  The letter complained of Oasis’s conduct both towards him and towards a colleague, Mrs Zukowska, who had been dismissed in 2009 and whom he had represented at a tribunal hearing.  It went on to accuse “Oasis HR” of trying to suppress the evidence of a witness favourable to him, a Mr Dixon.  It also complained that Oasis had, notwithstanding its admission of unfair dismissal, referred his case to the GTCE and the ISA: that is described as “malicious”.  Although those are serious allegations, the general tone of the letter is reasonably temperate.

(4)	On 22 February 2012, i.e. very shortly before the remedy hearing, the Claimant sent an email to Oasis’s solicitors and to Mr Chalke complaining that Ms Graham had referred him to the ISA in relation to the conduct for which he had been dismissed, notwithstanding its acceptance that his dismissal had been unfair: the referral said that Oasis had only conceded procedural unfairness and that it continued to consider the Claimant “a wholly unsuitable person to work with children in any capacity”.  The email describes this as “an outrageous perversion of the truth”, since it had become clear before Oasis threw in the towel that there was in fact no basis for the charges against him.  It says that Oasis’s conduct constitutes “criminal contempt for justice also the criminal offence of fraud”.  He also refers to Ms Graham having attempted to suppress evidence and to prevent the truth coming out.

17.	It is convenient to make our observations now about those documents.  The assessment of whether and if so to what extent they constituted unreasonable behaviour on the Claimant’s part and the impact of such behaviour on Oasis and its staff – which would be central questions in assessing the practicability of re-engagement – was of course primarily a matter for the Tribunal.  It found, at paragraph 12 of the Reasons, that there was nothing seriously wrong in the Claimant writing to Oasis’s Founder and its Chief Executive.  At paragraph 13 it addressed the complaints made in Ms. Graham’s witness statement that the Claimant was alleging a conspiracy against him.  It noted that that precise allegation did not appear to have been made.  It did accept that the Claimant had alleged some “duplication” or “moving” of documents.  It does not seem to have regarded those allegations as serious, though we are bound to say that we do not quite understand the point which it makes about them.  These two paragraphs as a whole do not very clearly address the points made to us by Mr Jeans, but it looks as though Mr Flynn’s focus was rather different: the Tribunal emphasises that he focused on what he said were allegations of conspiracy (no doubt because he hoped to bring the case within the ambit of Ormrod LJ’s observations in Nothman) – see below. 
 
18.	In any event, however, we cannot regard the allegations to which to which Mr Jeans drew attention as egregious.  No doubt the Claimant used some hyperbolic language, and we are very willing to assume that his allegations of forgery and fraud are ill-founded; but they appear to be over-reactions rather than wanton inventions. Anyone with experience of employment litigation knows how difficult it can be for an unrepresented party to maintain a sense of proportion, and it is very common for genuine differences of opinion or recollection to be perceived as dishonest or innocent errors in documents to be treated as evidence of forgery.  It is not hard, for example, to understand why – whatever the formal rights and wrongs – the Claimant as a layman felt outraged by Oasis’s conduct in referring to the GTCE and the ISA the very allegations which, as he perceived it, it had failed to uphold in the Tribunal. Of course we appreciate that the importance of the Claimant’s allegations is principally because of the effect which it is said they had on the people who were subject to them or to whom they were addressed.  Nevertheless whether they really deserved the epithets “vindictive and vexatious” may be relevant background.

THE TRIBUNAL’S REASONS

19.	In view of the terms of Mr Jeans’ challenge to the Tribunal’s decision we need to set out its reasoning fairly fully.

20.	Having made its findings of fact, the Tribunal refers at paragraphs 18-19 of the Reasons to the statutory provisions and to two early authorities giving guidance on the correct approach to the question of practicability of reinstatement or re-engagement, namely Coleman v Magnet Joinery Ltd. [1975] ICR 46 and Meridian Ltd. v Gomersall [1977] ICR 597.  In Coleman the Court of Appeal emphasised that “practicable” meant not just “possible” but “capable of being carried into effect with success” (see per Stephenson LJ at p. 52 B-C) and that reinstatement would not be the practicable in that sense if it would lead to the reinstated employee’s colleagues taking industrial action.  In Meridian this Tribunal enjoined “a broad common sense view of what was practicable”.  The Tribunal said in terms that it accepted that that was the correct approach.

21.	The Tribunal then, at paragraph 20 of the Reasons, summarised Mr Flynn’s submissions on behalf of Oasis, as follows:
“Mr Flynn suggested that the fact that the Claimant had made a number of serious allegations, which had been found to be unsubstantiated or had been abandoned, was a factor which the Tribunal should take into account in considering practicability.  The Respondent submitted that the serious nature of those allegations and the wide number of people against whom they were levelled meant that any re-employment order would lead to industrial difficulties.”
It observed, at paragraph 21:
“It seems to us that that contention has some difficulties of its own. It is noted that the Claimant made (but subsequently withdrew) an allegation of race discrimination.  Any such allegation is, of course, a “protected act” and any improper action taken against a person in the position of this Claimant who has committed a protected act would amount to unlawful victimisation.  It did not seem to us that it was the intention of Parliament that a person who was protected against victimisation should, nonetheless, lose the benefit of the primary remedy of re-employment merely because there might be industrial relations difficulties.”

22.	The Tribunal then referred to the reliance placed by Mr Flynn on Nothman v London Borough of Barnet (no. 2) [1980] IRLR 65.  That was a case in which this Tribunal, allowing an appeal from an industrial tribunal, found that a teacher had been unfairly dismissed and proceeded itself to consider the issue of remedy.  The applicant sought reinstatement or re-engagement at the same school.  That was refused, Slynn J saying:
“Miss Nothman asks on that basis for reinstatement. We find it quite impossible to order this. Maybe provoked by her anxiety and despair during the various inquiries, she has made allegations against the members of the staff which would make her reinstatement at Copthall School, even at this distance of time, unthinkable.”

She sought permission to appeal to the Court of Appeal, which was refused.  Ormrod LJ said at para. 4 (p. 66):

“Miss Nothman has mentioned in her proposed Notice of Appeal (and from time to time touched on it in this Court) what she believes to be the background of this case, that is her belief that there has been a long-standing conspiracy against her. We have made it clear in this Court that we cannot investigate that. It is only right to say that anyone who believes that they are a victim of conspiracy, and particularly by their employers, is not likely to be a satisfactory employee in any circumstances if reinstated or re-engaged.”

23.	At paragraph 23 of the Reasons the Tribunal said that it regarded Nothman as distinguishable for two reasons – (a) that the Claimant had not in the present case alleged that he was the victim of a conspiracy; and (b) that Miss Nothman had, unlike the Claimant, been seeking reinstatement at the same school.  It is convenient to deal now with a submission by Mr Jeans that the first of these reasons reflected an over-literal reading of Nothman.  He said that Ormrod LJ clearly had in mind, as did Slynn J, any case in which allegations made by the dismissed employee against the people with whom he would be working if reinstated or re-engaged would make it impossible for them to work together, and that it was immaterial whether those allegations referred specifically to a conspiracy.  We agree with that, and to that extent we part company with the Tribunal.  But its second distinction seems to us plainly right in principle: the fact that an employee has made serious allegations against colleagues or managers at one workplace will not as such impact on the relationship which he will have with colleagues and managers at a different workplace (and, in this case, one which is 200 miles away).  That is not, no doubt, the whole story – see below – but it does mean that Nothman is not decisive of the present case.

24.	The Tribunal then set out its main conclusion at paragraphs 25-30 of the Reasons, which we should reproduce in full:

“25. We can now come to our conclusions.  Whilst, as we have indicated, very few successful Claimants nowadays seek re-employment orders, the relevant legislation, setting out the primary remedies of reinstatement/re-engagement is now some forty years old.  It has not been substantially amended during that period.  It remains the intention of Parliament that a successful Claimant should be reinstated or re-engaged, if he so wishes.  The only relevant circumstance in which that will not occur is if it is not practicable.  The Respondent’s primary case on practicability is, in short, that the Claimant has been the subject of a substantial number of allegations of misconduct against him and that he, in turn, has made a substantial number of allegations of misconduct on the part of the other employees of the Respondent, some of which are then alleged to amount to further misconduct.  It seems to us that that is not an uncommon situation in unfair dismissal claims involving professional people.  It is notoriously the case that complex allegations and counter-allegations are made in such cases and Tribunals frequently spend weeks, rather than days, in analysing and deciding the contentions of those parties.  It is the task of the Tribunal to reach a conclusion on the merits of those matters.  It is open to the parties to make such allegations as they think will assist their respective cases.  It is open to each of the parties to communicate with their opponent if they seek to argue the merits of the case in correspondence.
26. Taken at face value (and, indeed, in detail) Mr Flynn’s submission on behalf of the Respondent would mean that a Claimant who had been involved in a relatively bitter dispute with his employers, and who then succeeded in a claim for unfair dismissal, could never be reinstated to re-engaged because the prior history would make such re-employment impracticable.  It seems to us, however, that there is likely to be a substantial difference between the manner in which a party has conducted itself in litigation (and, of course, in earlier internal disciplinary procedures) and the manner in which that person will conduct himself in subsequent employment, some distance from the original cause of the relevant problems.
27. Of course, as the Claimant conceded, he will remain a man of principle.  That does not, however, mean that he will raise his principles at every opportunity and we would urge him not to do so.  We consider that, if we were to accept Mr Flynn’s argument that re-employment is not practicable, the more bitter the dispute between the parties and the more serious the allegations and counter-allegations that had been made, that approach would have the effect of emasculating the remedy of re-employment.  We do not regard that as the intention of Parliament.
28. As to Mr Flynn’s point that there must be an element of potential success if a Re-engagement Order is to be made, we noted the Claimant’s frequent contention that it is vitally important for him to be reinstated as a Teacher and to be working as a Teacher.  He made it very clear that the purpose of his seeking a Re-engagement Order was to be able to present a CV to any future employer showing, entirely properly, continuous employment by the Respondent as a teacher over some years.  If he were not re-employed, there would be a material gap in his CV and the explanation of that gap would, in the view of the Claimant, produce substantial difficulties in his obtaining employment other than with the present Respondent.  In our view and on the evidence, it is likely that the Claimant will, upon re-engagement, seek further employment elsewhere, probably from the Autumn Term 2012.  If that proves to be the case, then the Respondent will no doubt seek to support the Claimant in leaving this employment.  That is likely to be a successful outcome for both parties.
29. During the course of the Hearing, the Respondent suggested, through both Ms Graham and Mr Flynn, that whatever the good intentions the Claimant now expressed, he was likely to continue to display the type of conduct of which the Respondent complained.  In particular, he was unlikely to leave the present dispute behind and, if re-engaged, he would continue to pursue the present battle.  We can understand the Respondent’s concerns on that matter.  We suggested to the claimant that, if he was serious about re-engagement, he would equally have to accept that the Respondent’s concerns were valid.  We invited the Claimant to write out a form of undertaking which he would offer to the Respondent.  In due course, it became clear that, rather than giving an undertaking to the Tribunal, which may not be enforceable, it was preferable to include the terms of that undertaking as a specific term of any Re-engagement Order.  Both parties accepted that that was the proper basis on which we should proceed and the terms of Paragraph 2.8.1 of the Judgment above follow the Claimant’s original undertaking very substantially.  The last sentence was added to the Claimant’s undertaking at the suggestion of Mr Flynn and with the consent of the Claimant.
30. We have therefore concluded, for those various reasons, that a Re-engagement Order should be made in the terms set out in the Judgment.  The Claimant must strictly comply with the terms of Paragraph 2.8.1 of the Re-engagement Order.  If he does not do so, the Respondent will be acting entirely properly in taking further disciplinary action against him by reason of any breach of the terms of his contact as we have, in effect, drafted it.”

25.	The terms of the order to which the Tribunal refers at paragraph 29 are as follows:
“2.8 	The following terms shall be included in the contract of employment to be issued by the Respondent to the Claimant:-
2.8.1	The Claimant withdraws his existing complaints to the YPLA and the ISA and shall not pursue those complaints through the Department for Education or through OFSTED (no existing complaint having been made).  The Claimant will not write further to the Founder, Chief Executive Officer of Chair of the Board of Trustees of the Respondent about these same matters nor will he pursue any complaint against the Human Resources Department of the Respondent or its individual members about the matters which has caused the dispute between the parties which is the subject of Case Number 1807521/2010 in the Employment Tribunal.  The Claimant will treat all complaints and disputes that have been the subject of his letters to the Respondent as resolved between those parties.  The Claimant will at all times during his employment by the Respondent at the Shirley Park Academy and elsewhere (if appropriate) strictly comply with the Respondent’s procedures relating to disciplinary and grievance matters and any whistleblowing policies.  He will comply with all reasonable management instructions during the course of that employment.
2.8.2 The Respondent will similarly treat all such issues as have arisen between the parties in respect of that dispute as resolved and will not pursue any such matters further nor will it complain to any third party in any manner in relation thereto.”

The Claimant confirmed to us that all except the final sentence of para. 2.8.1 was substantially drafted by him (though subject to some tidying up by the Tribunal): the Tribunal had asked him to do so over the lunch adjournment.

THE GROUNDS OF APPEAL

26.	Oasis’s grounds of appeal as pleaded are fourfold; but Mr Jeans in his skeleton argument reformulated them under three headings.  We take them in turn.

(1)	Misdirection/Wrong Approach

27.	Under this heading Mr Jeans makes a number of related points.  His starting-point is that the Tribunal over-stated the “primacy” of reinstatement and re-engagement as a remedy for unfair dismissal.  He relies partly on paragraph 21 of the Reasons but particularly on paragraph 25: it is, he submits, simply not right that the effect of the statutory provisions is that a successful claimant should be reinstated or re-engaged unless it is not practicable to do so.  He then submits that, having given undue weight to the Claimant’s right to be re-engaged subject only to practicability, the Tribunal has seriously mis-assessed the strength of the objections to his re-engagement in the circumstances of the present case.  In particular it wrongly discounted Mr Flynn’s submissions about the impact that the Claimant’s correspondence would have on his “re-engageability” by saying that this would in practice emasculate the availability of the remedy, since it would rule it out in every hard fought case: see paragraphs 26-27 of the Reasons.  In the first place, that was not the effect of Mr Flynn’s submissions: his case was that the Claimant’s correspondence in the present case was peculiarly aggressive and offensive, and it did not at all follow that re-engagement would be impossible in every case where the parties took strongly opposed positions.  But in any event, to the extent that it was indeed the case that the bitterness engendered by a disputed unfair dismissal case would render reinstatement and re-engagement impracticable, so be it: references to the general “intention of Parliament” could not be deployed to undermine the specific provisions of sub-section (1) (b) and (3) (b).

28.	Mr Jeans submitted that the error of the Tribunal’s approach was demonstrated by the terms of the order which it felt obliged to make, as set out at paragraph 23 above, requiring the Claimant to abandon what it itself described (Reasons, paragraph 29) as “the present battle”.  The fact that it regarded the order as necessary showed that it recognised that the Claimant’s relationship with Oasis was wholly confrontational, and in those circumstances it should – and would but for the inappropriate primacy which it attached to the remedy – have exercised its discretion to refuse re-engagement.  It was, in particular, extraordinary that the Tribunal regarded it as necessary to add, at Mr Flynn’s request, an express term that the Claimant would “comply with all reasonable management instructions”.  The schools which Oasis was engaged to manage were, by definition, failing schools, where the teacher/management relationship was even more than usually of critical importance.  It could not be right that it should be required to engage an employee who could not be implicitly trusted to obey reasonable instructions, with the consequent risk to the interests of peculiarly vulnerable pupils.

29.	Mr Jeans also submitted – though the point appears only in parenthesis in his skeleton argument and is not a pleaded ground of appeal – that the “terms” so imposed “must be well outside those contemplated … in section 115 (2)”.

30.	Finally, Mr Jeans drew attention to paragraph 28 of the Reasons, in which the Tribunal says that if re-engaged the Claimant would probably not wish to stay with Oasis for long and that the real importance of re-engagement to him was to be able to look for future employment from the basis of current employment.  He submitted that that amounted to a tacit recognition that any renewed relationship between the Claimant and Oasis was likely to be troubled.  But he also submitted that the Tribunal’s argument was tantamount to saying that the Claimant should be re-engaged for the sake of vindicating his reputation; and he points out that in Nothman (above) Ormrod LJ said, at para. 5 (p. 66):
“This legislation is not designed to enable complainants to re-establish their reputation or vindicate their reputation or anything of that kind. It is concerned with whether they were fairly or unfairly dismissed and once a conclusion is reached that they were unfairly dismissed, the question is how reasonably and most sensibly to compensate the unfairly dismissed employee.”

31.	Mr Jeans reinforced those points by reference to the decision of this Tribunal in Wood Group Heavy Industrial Turbines Ltd. v Crossan [1998] IRLR 680.  In that case the employee had in the tribunal made allegations of a conspiracy against him and that a number of people were “out to get him”.  Re-engagement had been ordered, apparently at the same factory.  That order was overturned.  Lord Johnston said, at para. 10 (p. 681): 
"... [I]t is inevitable to our way of thinking that when allegations of this sort are made and are investigated against a genuine belief held by the employer, it is difficult to see how the essential bond of trust and confidence that must exist between an employer and employee, inevitably broken by such investigations and allegations can be satisfactorily repaired by re-engagement or upon re-engagement. We consider that the remedy of re-engagement has very limited scope and will only be practical in the rarest cases where there is a breakdown in confidence as between the employer and the employee."

32.	Those are all serious points, characteristically persuasively advanced.  But in the end we are not persuaded that the Tribunal erred in law in any of the ways alleged.  Our reasons are as follows.

33.	We start by acknowledging that the Tribunal’s references to the primacy of the remedy of reinstatement and re-engagement were not quite accurate.  Specifically, it is not strictly correct to say, as the Tribunal did at paragraph 25 of the Reasons, that one or other order must be made unless it is shown to be impracticable.  That overlooks the fact that the discretion under section 112 (3) and/or section 113 is in principle general, albeit that section 116 prescribes particular matters to which regard must be had: cf. paragraph 10 above.  (It also, strictly speaking, ignores factors (a) and (c) in section 116 (1) and (3); but (a) is in all ordinary cases a given, and (c) does not arise on the facts of the present case.)  However, we do not think that that is a significant misdirection.  No other factor relevant to the exercise of the Tribunal’s discretion, i.e. besides practicability, was in play in the present case; and in those circumstances we do not see anything wrong in the Tribunal approaching the case on the basis that a re-engagement order ought to be made unless it was shown that re-engagement was impracticable.  It may perhaps be said that the Tribunal’s mood music was rather more favourable to re-engagement that is generally heard; but that cannot amount to an error of law.

34.	As for Mr Jeans’ strictures on paragraphs 26 and 27 of the Reasons, he is no doubt correct that if the manner in which a dismissed employee has pursued his (ex hypothesi) successful complaint of unfair dismissal has so soured his relationship with those with whom he would have to work that reinstatement or re-engagement is impracticable, then no order should be made, even though the damage done may have been the inevitable result of fighting his case.  But we do not read the Tribunal as denying that: in our view it was doing no more than countering what it understood to be an extreme submission from Mr Flynn.  It clearly accepted that it did have to decide whether it was practicable for Oasis to re-engage the Claimant at – be it noted – a different school.  The same goes for paragraph 21 of the Reasons: we are not sure we understand the point being made to the Tribunal, but what matters is that there is no sign that it deflected it from considering the essential case.

35.	In truth, therefore, in the absence of any identifiable misdirection we are left with a submission that the Tribunal’s decision was not open to it on the evidence – in short, though Mr Jeans avoided explicitly putting it this way, that it was perverse.  That is of course a high hurdle for Oasis to jump.  We do not believe that it can do so.  The Tribunal clearly addressed the difficulties raised by Oasis and made a considered judgment that they were not such as to render his engagement at Shirley Park impracticable.  There are two points in particular.

36.	First, the fact that re-engagement was going to be at a different school, with wholly new colleagues and no history to live down, is of fundamental importance, and the Tribunal had it clearly in mind: see paragraph 23 of the Reasons.  This is not a case like Nothman or Wood Group where working relationships that would have to continue have been irreparably damaged.  Mr Jeans argued that the relevant relationship was not with a particular school but with Oasis as an institution.  While we accept that the Claimant did have a relationship with Oasis, it is inherently unlikely that any difficulties outside the sphere of those with whom he would have a regular working relationship would be such as to render his re-engagement “impracticable”.  Mr Jeans told us that, given the particular way in which Oasis works, its HR department is of unusual importance, so that the Claimant’s allegations against it would give rise to a serious obstacle.  But his real complaint was against two individuals, the head of the department, a Mr. Young, and Ms Graham.  Mr Young had departed by the time with which we are concerned.  Ms Graham was not the head of the department and there was no necessity that the Claimant would have to deal with her at Shirley Park (and we were told that arrangements have in fact been made so that she does not do so).  This kind of question is of course a matter for the factual assessment of the Tribunal.

37.	Secondly, the Tribunal clearly recognised that the Claimant was the kind of man who can cause difficulties as an employee: Mr Jeans – perhaps unkindly, but some would say realistically – said that one man’s “man of principle” (Reasons para. 29) is another man’s troublemaker.  It was aware not only of his own difficulties at Immingham but of his involvement in Mrs. Zukowska’s case.  If the Tribunal had assessed that it was inevitable that sooner rather than later he would cause trouble at Shirley Park by “raising his principles at every opportunity” it might well have judged that his re-engagement was impracticable.  But it evidently did not take that view.  It was impressed by the Claimant and it regarded him, on the evidence that it heard, as essentially the injured party (paragraph 17), which would go some way to explaining any intemperate behaviour that there may have been and making it less likely that it would recur.  It regarded him as willing and able to start a new page at Shirley Park, as is apparent from the terms of the order which it invited him to draft (see above).  We do not believe that the fact that it thought it appropriate to include terms in the order of the kind that it did means that it did not believe that the Claimant would behave himself.  It is just as consistent with a prudent wish to reinforce his expressed good intentions (paragraph 29) as with pessimism about the outcome.  The Tribunal may or may not have been over-optimistic, but the assessment was for it to make and not for us, and we cannot say that it was perverse.

38.	As for the Tribunal’s observations in paragraph 28 of the Reasons, it seems that it was seeking to answer a point made by Mr Flynn that “there must be an element of potential success”.  It is not quite clear what the point was, but if it was that the order should not be made unless there was a good chance of the Claimant staying at Shirley Park for several years, it seems to us that the Tribunal’s answer to it was legitimate.  In any event, the observations would only betray a misdirection if the Tribunal was saying that it did not matter if the re-engagement was likely to be a failure while it lasted because it would still rescue the Claimant’s CV; but that is clearly not what it was saying.

39.	As for Mr Jeans’s parenthetical comment that the terms were not of a kind contemplated by section 115, no such point was made at the time or in the Notice of Appeal, and we do not believe that it would be right to allow it to be taken now.  The point may not be straightforward, one possible issue being whether the “terms” referred to in sub-section (1) of section 115 and in section 116 (2) are the same animal as are referred to in sub-section (2).  But our provisional view would be that, although elaborate terms of this kind are unusual and should be adopted only with caution, we cannot see why they should be absolutely outside the powers of the Tribunal to impose.  Sensible creativity, in a case that really calls for it, should not be discouraged.

40.	We accordingly dismiss grounds 1 and 2.

(2)	The Tribunal’s Approach to “Conspiracy”

41.	Mr Jeans made two points under this heading – first, that the Tribunal was wrong to say that the Claimant was not alleging a conspiracy against him; and secondly that in any event the message of Nothman did not depend on whether allegations of conspiracy were made.  The second point is right, as we acknowledge at paragraph 23 above.  The first depends on how you read the letters relied on by Mr Jeans and perhaps also on exactly what you mean by “conspiracy”; but it does not require to be decided.  The real issue here does not depend on verbal points of this character but on whether the Tribunal focused on the essential question of whether the various hard things that the Claimant had said made it impracticable to re-engage him – and if so whether its conclusion that they did not was open to it.  For the reasons already given we believe that it did and it was.

(3)	Failure to Make Findings on Key Issues

42.	Mr Jeans submitted that the Tribunal should have made explicit and reasoned findings on two points which were raised by Ms Graham in her oral evidence – see paragraph 13 above – namely (a) whether the Claimant had refused to allow an observation of his teaching while at Immingham and (b) why he had failed an observation at Fulwood.  The Tribunal recorded the Claimant’s denial of the first allegation and said that he had explained the second – see paragraph 15 above – but it did not deal with either point properly.

43.	We do not believe that there is anything in this point.  It has been said many times that a tribunal does not have to deal in detail with every point made.  Neither of these matters had been raised in Ms Graham’s witness statement: they were added orally in chief.  Nor could they be matters of which she had direct knowledge.  The Tribunal was entitled to take the view that they were not central to the issue of practicability and that it was not necessary to deal with them in any detail.  

CONCLUSION

44.	We accordingly dismiss Oasis’s appeal.  No general conclusion about the readiness with which reinstatement or re-engagement orders should be made should be drawn from our decision, except perhaps that every case depends on its own facts.  In other cases where an unfairly dismissed employee makes serious allegations against his former employer he may indeed thereby render his reinstatement or re-engagement impracticable, as happened in both Nothman and Wood Group.  All we say is that the Tribunal was entitled to find that that was not the case here.

THE CLAIMANT’S APPEAL

45.	The Claimant’s single remaining ground is that the rate of salary prescribed in the order for his job at Shirley Park was lower than he had received at Immingham and, further, that it left out of account the fact that he continued to live in Yorkshire and had to bear the costs of travel to, and accommodation in, London in term time.  But he acknowledged that at the hearing Oasis said that £40,433 p.a. was the rate for the job, and that he did not at the time argue for more or raise the question of his travel and accommodation expenses.  As he put it to us, “the Tribunal put me to a choice and I said OK.  I see I could have fought it but I didn’t feel like doing so”.  That is very fair, but he has to take the consequences of the choice he made.  

46.	The Claimant’s appeal is dismissed.