“I was struggling with the fact that so many black people had lost their farmland. And here I was faced with having to help a white person save their land. So, I didn’t give him the full force of what I could do. I did enough so that [he would] go back and report that I did try to help him. So I took him to a white lawyer … I figured if I take him to one of them, that his own kind would take care of him.”

Seemingly damning stuff.

As happens in the media-driven world, a storm developed almost immediately. The edited video appeared at 11.18am, and by mid-afternoon was all over the web. By the evening government officials had telephoned her demanding her resignation. She has alleged that this speed, and refusal to listen to her explanations, stemmed from the administration’s fear over the coverage they would likely receive that evening from right wing angles of the press. She later said that the under-secretary of state told her “you’re gonna have to [resign] because you’re on Glenn Beck tonight”. So she did.

But OOPS! The video of the speech had been carefully and deliberately edited. In the full speech, which came to light the next day, Ms Sherrod makes clear that she did ultimately provide all the help she could to the white farmer, and that she learned from the experience:

“But working with him made me see that it’s really about those who have versus those who don’t, you know, and they could be black, they could be white, they could be Hispanic.”

The white farmer concerned contacted CNN to say that she had, in fact, saved his farm.

So Sherrod was blameless. She had simply made a speech about her views of social justice being centred on race in the eighties, but moving to poverty based on her experiences of helping a poor farmer who was, for once, white. NAACP, the black civil rights movement to whom the speech had been addressed, said:

“she was sharing this account as part of a story of transformation and redemption. In the full video, Ms.Sherrod says she realized that the dislocation of farmers is about “haves and have nots.” “It’s not just about black people, it’s about poor people,” says Sherrod in the speech. “We have to get to the point where race exists but it doesn’t matter.”

The problem being of course, that she had already been dismissed.

Would this dismissal have been fair in the UK? The instinctive answer is that of course it would not; the law requires that:

1. a dismissing employer believes the employee to be guilty of misconduct;
2. had reasonable grounds to sustain that belief;
3. and in the circumstances carried out a reasonable investigation.

Surely point 3 should surely fail here, given that Sherrod’s version was vindicated within 24 hours?

Might the government argue however that “in the circumstances” no greater investigation was possible? The administration was about to suffer a whole evening’s media, and next day’s newspapers, slamming it for both racism and a failure to take any action. If indeed she were guilty of the alleged racism, then it could avoid a great deal of criticism by having acted quickly and decisively. The proposition I would like to put forward, for debating purposes only you understand, is that these are legitimate reasons for an employer to curtail its investigation.

Take, for example, a company which suspects one of its employees of having stolen from a major customer. That customer is furious, and the company considers that only immediate dismissal will salvage the business relationship. The employee is dismissed, and as an explicit result of that the relationship is saved, and perhaps with it the company. This trespasses into third party / SOSR dismissal territory, but surely commercial or political pressure is a relevant factor for the third prong of the test? I’d be interested to know what people think. Is there perhaps an echo of Sharon Shoesmith here?

Happily, Sherrod has now received an apology and the offer of a new government post. Read all about her here and here.

Where they are of use to the employee is where they had long contracts with significant benefits, and where they would find re-employment difficult or impractical. Obviously these points can still be cured with money, but being put back into the same job (or one like it) is still a decision that some employees take.

An order for reinstatement puts the employee back in the same job from which he was dismissed, his original contract is revived and it is in effect as if the dismissal had never occurred.  Where this is impractical the tribunal can instead order re-engagement, where the employer must re-employ the employee on such terms as it thinks just. Therefore, if the circumstances of the dismissal had alienated the employee from his particular team, the tribunal could order appointment to a different position within the employer. ‘Re-employment’ is used as an umbrella term for both orders. An employer cannot be compelled to comply with a re-employment order, but if it does not comply then additional compensation will be awarded of between 26 and 52 weeks pay. Because of this, threats of applications for re-employment are used far more often than they are meant, in order to leverage larger settlement offers from employers who would rather cut off their own nose than re-employ someone they spent so much time and effort removing from the company.

In the recent EAT case of Central & North West London NHS Foundation Trust v Abimbola [2009] UKEAT HHJ Peter Clarke runs through what a tribunal must consider if it is asked for a re-employment order. The relevant law comes from s116 of the Employment Rights Act 1996:

116 Choice of order and its terms
(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.

This case was concerned with that practicality requirement. The Claimant, a psychiatric nurse, had been accused of holding a troublesome patient in a headlock. It was common ground that the Respondent NHS Trust had a genuine belief that the incident had occurred, and that dismissal was a reasonable response to that belief. The Tribunal found that the dismissal was unfair as the employer did not have reasonable grounds for that genuine belief. It also that there had been no contribution to the dismissal by the employee. It ordered reinstatement.

In short, the EAT overturned the reinstatement order because the genuine belief held by the employer as to the employee’s conduct rendered it impractical to put him in such a trustworthy post. The logic is that employment requires mutual trust and confidence and the employer simply could not repose such trust and confidence in the employee. In doing so it followed a previous similar decision in ILEA v Gravett [1988] IRLR 497.

One other item of note from this judgment is that the tribunal can take note of previous unproven allegations in determining the issue of trust and practicability, whereas these are usually disregarded for the purposes of the unfair dismissal itself.