When can the Tribunal order reinstatement or re-engagement?

Unfair dismissal law was originally written, and is still phrased, such that the primary remedy for unfair dismissal is an order for reinstatement or re-engagement, rather than compensation. They are however a minority, the vast majority of Claimant employees opting for the money instead.

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.

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