1. This is our unanimous Judgment, in which we refer to the parties as the Claimant and Respondent, as below. We are concerned with the Respondent's appeal against a Judgment of the Lincoln Employment Tribunal (Employment Judge Faulkner, sitting alone on 29 February 2016; "the ET"), sent to the parties on 6 April 2016, by which the ET ordered that the Claimant was to be re-engaged by the Respondent, the ET having earlier found that she had been unfairly dismissed. Representation before the ET was as it has been on this appeal.

1. The Claimant had been employed by the Respondent since 1992 and as a Staff Nurse since September 2006, employed in that capacity at the Respondent's Grantham & District Hospital. Over a night shift on 16 and 17 May 2014, an incident occurred which ultimately led to the Claimant's summary dismissal on 24 October 2014. That incident, and the way in which matters came to be progressed to a disciplinary investigation, are described by the ET in its Liability Judgment as follows:

"11. The background to this matter can be stated briefly, being tragic events which occurred on the night of 16 and 17 May 2014. The Claimant, employed by the Respondent since July 1992 and as a Staff Nurse since September 2006, was on duty in A & E. A young boy was brought to the Hospital apparently having suffered a cardiac arrest; despite the efforts of Hospital staff, he sadly died. As can be imagined, his adult family members were distraught, at least one collapsing and others damaging property. It is alleged that at some point later in the night the Claimant administered the drug Diazepam to four of the family members without prescription from a doctor and therefore in an unauthorised manner. The Claimant does not dispute that if she did so it was contrary to the Respondent's Policy for Medicines Management … and the Nursing & Midwifery Council ["NMC"] "Standards for medicines management" … It is also alleged that the Claimant failed to complete the required patient records, again contrary to the Medicines Management Policy … and to the NMC's "Record keeping, Guidance for nurses and midwives" …

12. Whilst in large part the Claimant accepts that her record-keeping was on this occasion wholly inadequate, she does not accept that she administered the drugs without prescription. Her case is that the drugs were prescribed by Dr Naqvi. The matter came to the Respondent's attention when Dr Naqvi informed an A & E Specialty meeting on 20 May 2014 that she had been asked by the Claimant to complete prescriptions when the Claimant had already given the drug to the patients, Dr Naqvi signing the prescriptions thereafter. The Claimant was not present at that meeting.

13. Ms Shepherd [a Sister at the hospital] evidently reported the matter to Ms Charles [Matron for Medicine], who emailed Ms Shepherd on 21 May … outlining what she understood from their discussion, including the comment, "This medication was not prescribed at the time of administration". Mr Prydderch [Deputy Director of Operations] was copied into that email, having stated in an email to Ms Charles the day before, "Sounds like someone, ? 'Joyce' [the Claimant] decided to give someone in the family diazepam, then told Naqvi to write it up later. Naqvi hadn't even seen the patient but wrote it up anyway. Jeez." On 22 May … he emailed other colleagues, stating that Dr Naqvi "was just performing tasks under duress, from someone who it sounds is quite difficult and overwhelming". The Claimant takes that as a reference to her; it seems to me more likely than not that it was.

14. It was decided that the Claimant should carry out non-clinical work whilst the matter was investigated, rather than being suspended. On 23 May, Ms Charles prepared a short report for Mr Prydderch, headed "Preliminary Investigation" … The report stated that Dr Naqvi had informed the meeting on 20 May that the Claimant had asked her to complete the prescriptions for patients she had given the drug to "and there was no need for the doctor to see the patients". The report appears to have been prepared solely on the basis of what Ms Shepherd reported from the meeting of 20 May. The Claimant met with Mr Prydderch on 23 May as planned, was assigned non-clinical duties, but very shortly afterwards went off sick. It is not suggested that the Claimant had been subject to any disciplinary proceedings at any other time during her long employment with the Respondent."

1. The Claimant subsequently pursued claims of unfair and wrongful dismissal before the ET, in respect of which there was a Liability Hearing over three days in early November 2015; the ET's reasoned Judgment in that respect was sent out on 22 December 2015.

1. Considering the Claimant's complaint of unfair dismissal, the ET accepted that the Respondent had made good a potentially fair reason for the dismissal, namely its belief that the Claimant had administered drugs to four patients without prescription and failed to adequately record the treatment of those patients. It concluded, nevertheless, that the Respondent's decision to dismiss the Claimant for that reason had been unfair: there was an assumption of guilt from the outset, which impacted upon the investigation; there were also procedural failings, in particular at the appeal stage, which rendered the process unfair.

1. Considering whether the Respondent had reasonable grounds for its belief as to the Claimant's conduct, the ET expressed a number of concerns, in particular as to the way in which the Respondent had reached its conclusions on the Claimant's guilt on the core charges. One matter that particularly concerned the ET was the adverse inference the Respondent had drawn from the Claimant's initial response in the investigation as contrasted with what was apparent from the relevant CAS cards (a CAS card is a card produced automatically once a patient is booked into A&E with the intention that any care will commence thereafter). The disciplinary panel had relied on discrepancies between the Claimant's initial account - that she had completed the documentation correctly - and the content of the CAS cards, which showed she had not. It relied on that not only in deciding what was likely to have occurred on the night in question but also considered this suggested she had been untruthful, giving rise to "questions about [her] honesty and integrity as a registered nurse" (Liability Judgment, paragraph 44). For its part, the ET was critical of the Respondent's reliance on the content of the CAS cards to reach conclusions adverse to the Claimant: they had not been a reliable guide as to what had taken place, and to turn that material against the Claimant was unreasonable (paragraph 90).

1. Turning to the wrongful dismissal complaint, the ET had to make findings as to what had in fact happened on the night of 16 and 17 May 2014. On the question of whether the Claimant had given drugs without prescription and thus without prior authority, it concluded she had (see paragraphs 99 and 102 of the Liability Judgment); that being in breach of the Respondent's policies and procedures, it amounted to serious professional misconduct, which provided grounds for summary dismissal under the Respondent's disciplinary procedure. In reaching that conclusion, the ET disregarded the content of the CAS cards and specifically drew no inference as to the Claimant's credibility from the fact that she had not recalled the state of the records when responding in the investigation some two months later. It considered the only relevance of the cards was to corroborate that the Claimant had departed from her normal practice - that is, to keep proper records - on the night in question, which suggested she had also departed from her normal practice in terms of her treatment of patients that night (see paragraph 100 of the Liability Judgment).

1. The matter then returned to the ET for consideration of remedy on 29 February 2016; the hearing with which we are concerned and at which the Claimant confirmed she was seeking an order for reinstatement or re-engagement.

1. The ET revisited its findings on liability, summarising its conclusion as to what had happened on 16 and 17 May 2014 as follows:

"13. In deciding the question of liability in respect of the complaint of breach of contract, I found as a fact that the Claimant administered Diazepam to relatives of a deceased child, without prescription and therefore without authority, which the Claimant accepted at the Liability Hearing was in breach of the Respondent's Policy for Medicines Management and the NMC's Standards for Medicines Management (see paragraph 11 of the Liability Judgment). She also accepted that her record-keeping was far short of what it should have been. I made clear that I did not find the Claimant acted in a calculated manner, coldly and deliberately setting out to act in the way she did but from good motive and under significant pressure both emotionally and practically. In those circumstances, some employers would not have dismissed an employee with such long service and good record, but that did not render the dismissal unlawful given the Respondent's policies."

1. It recorded the Respondent's conclusion that the Claimant had made:

"10. … serious and numerous errors in relation to the administration of medication, any one of which could have led to serious patient harm. …"

1. It further recorded that the dismissal had been held to be the appropriate sanction because of what he dismissal letter described as:

"10. … serious failings of "professional judgment and decision-making", meaning that a training programme "would not be successful". …"

The ET noted that the disciplinary panel had reached that conclusion because:

"10. … the Claimant had been untruthful [and] the employment relationship had "irretrievably broken down"."

1. There had been both an unsuccessful appeal against the decision to dismiss and subsequently a re-hearing, albeit that the ET had not considered the latter to be relevant to the issues it had to determine on liability. The panel at the re-hearing - which the Claimant did not attend - reviewed the evidence, including the CAS cards, and held that the main charge against the Claimant had indeed been made out. The re-hearing panel concluded:

"11. … it was crucial that the Claimant acknowledge her errors, but that she had untruthfully failed to do so. This led the panel to find that she did not acknowledge the seriousness of what she had done, raising in their minds serious concerns about her professional integrity and the Respondent's trust in her. Had she acknowledged her error, the panel noted, dismissal may not have resulted. …"

In evidence before the ET, however, the Respondent was unable to explain how the Claimant's maintaining her innocence was a failure to acknowledge the seriousness of the issues.

1. Turning to the question of reinstatement or re-engagement, the ET noted that the Respondent was a large employer and the Claimant was qualified to undertake a number of different nursing jobs. The Claimant accepted, given the ET's findings as to her conduct, that any compensation would be reduced for contributory fault but also observed that practicability was not really an issue relied on by the Respondent; the real question for the ET was whether granting an order for reinstatement or re-engagement would be just. The Respondent did, however, contend that it could no longer have trust and confidence in the Claimant, a matter that the ET accepted that it had to address, whether that was seen to go to practicability or to the justice of making a re-employment order (see paragraph 36 of the Remedy Judgment).

1. The ET noted that the fact that dismissal was for a conduct reason did not, of itself, mean a re-employment order was unjust; it was required to assess the misconduct and consider the justice of such an order in the light of that misconduct. It was necessary, therefore, to be clear about what it was that had constituted the Claimant's contribution to her dismissal, allowing that where contribution is assessed to be high it might be necessary to consider whether this was consistent with the employer being genuinely able to trust the employee again (see per Simler J in British Airways plc v Valencia .

1. In this case, the ET had found that the Claimant had administered drugs to four patients without prescription, and the Claimant herself had accepted there were inadequacies in her record keeping. Against these facts the Respondent made two points as to why it regarded a re-employment order as unjust: (1) it would undermine the Respondent's Policy for Medicines Management ("the Policy"), which raised patient protection issues and questions of public trust, not least as to whether the Respondent had ceased to have trust in the Claimant's clinical judgement; and (2) the Respondent could no longer trust the Claimant, because her response to the disciplinary case and her evidence before the ET had been dishonest.

1. On the first of those points, the ET accepted that the proper operation of the Policy was a matter of utmost importance to the Respondent and to the public more generally, accepting:

"41. … the Policy could be undermined, and thus injustice done to the Respondent, if ordering reinstating or re-engagement signalled that the Claimant or any other employee could choose to ignore the Policy in the future."

1. On the other hand, the ET noted:

"43 … the Claimant had enjoyed very long service with the Respondent during which she maintained an unblemished record as a medical practitioner. The Claimant is therefore someone of considerable professional experience and good record. Secondly, I note that the Claimant has undertaken voluntary training in medicines management which is certainly some evidence of her commitment to her profession and, in my judgment, evidence of her understanding of the importance of the Policy. Thirdly … the Claimant had received many glowing character references, including some from colleagues. That suggests that she would not have difficulty in re-establishing herself as a trusted colleague amongst those she would work with if reinstated, and is an indication at least that she would establish similar relations if re-engaged in a different role. Fourthly … the fact that the NMC had not applied any interim order or condition of practice at this stage meant that serious sanction on their part is unlikely; this was not a point taken by the Respondent in any event."

1. The ET also considered it was important to take into account the circumstances of the night in question, which were particularly emotive and distressing, that being especially so for the Claimant, as she had herself lost a child in earlier life. That said, the nature of A&E meant that staff would face stressful and demanding situations, and the Respondent's disciplinary panel had taken into account the difficulties the Claimant would face if she had to re-live the events of that night at some point in the future. On balance, the ET considered it would be unjust to order the Respondent to reinstate the Claimant into her nursing role in A&E (see paragraph 45 of the ET's Remedy Judgment).

1. The ET then turned to the second issue raised by the Respondent, that of the Claimant's dishonesty. Weighing up the evidence, the ET was, however, not satisfied that the Respondent had made good its case in this respect. The ET (at the liability stage) had addressed the discrepancies in the Claimant's explanation as against the CAS records, finding these were explicable given the events of the night in question and did not evidence dishonesty. Further, it did not find that the Claimant had been dishonest in her account to the ET: the ET found her to be a blunt and straightforward witness. It noted that the panel at the re-hearing had taken a rather different view - finding that maintaining her innocence meant she had not recognised the seriousness of breaching the Policy - but had not been able to justify that conclusion before the ET. For its part, the ET was satisfied that the Claimant had at no stage contested that acting in breach of the Policy was anything other than very serious. It concluded that, in an environment other than A&E, given her experience, record and professional commitment, the Claimant could clearly be trusted. Having taken that view, the ET considered it was just to order that the Claimant be re-engaged by the Respondent in a band 5 post at the Grantham & District Hospital, but outside A&E.

1. In completing its task in this regard, the ET turned to the question of any reduction for contributory conduct in the compensation to be awarded to the Claimant by way of back-pay and any further pay prior to compliance with the re-engagement order. Given its findings as to her conduct, the ET considered it would be appropriate for a reduction of one third to be made.