July 24, 2013

Unfair Dismissal

It rarely creates headlines and is almost never factored in by employers when defending an employment tribunal claim.

But a potential outcome could be the reinstatement of the employee to his previous job or re-engagement to a job comparable to the previous role or otherwise suitable. An employee can be re-engaged by the employer, by a successor to the employer or an associated employer.

Most employers, when they consider losing an unfair dismissal claim, only think about the potential award. However, it is little considered that s113 Employment Rights Act 1996 allows that where an employee is found to be unfairly dismissed and wishes to be reinstated or re-engaged the Tribunal must first consider whether to make such an order. A compensatory award should only be made when a Tribunal has made a positive decision against reinstatement or re-engagement.

In strict order, the Employment Tribunal should decide if reinstatement is appropriate. If it decides not, then it must consider if re-engagement is appropriate. If it should decide neither is the right solution, it is only that point at which a compensatory award should be made.

The Employment Tribunal is only under the duty to follow this process if the Claimant indicates on the claim form that they desires either reinstatement or re-engagement. The step it must then consider is whether or not it is practicable for the employee to return to the employer’s employment.

In reaching a decision as to whether reinstatement or re-engagement are suitable outcomes, the Employment Tribunal must have regard to the wishes of the employee and whether it is practicable for the employee to return to the employer’s business.

To decide whether it is practicable to make a reinstatement or re-engagement order the Employment Tribunal should consider the effects on the employer’s business, the employee’s relationship with colleagues, whether a replacement has been hired (though this won’t of itself make employment impracticable), trust and confidence, capability and ill-health, training, security checks, risk to public, and the employee’s contribution to his/her dismissal.

Further, it is a question of fact for the Employment Tribunal, which has a wide discretion to decide whether reinstatement or re-engagement is practicable. This means that any appeal against such an order would only succeed if the Tribunal has taken into account the wrong considerations, ignored the right considerations or reached a legally perverse decision.

The Employment Appeals Tribunal has made it clear that the Employment Tribunal should look at the specific circumstances of each individual case and take a broad common sense point of view.

An order for reinstatement is made under s114 Employment Rights Act 1996, which clearly specifies what must be included in the reinstatement order. The issues which must be specified are:

  • The amount payable by the employer regarding pay and other benefits lost by the employee between the dates their employment ended and restarted
  • The rights and privileges, including seniority and pension rights, which must be restored to the employee
  • The date by which the reinstatement order must be complied with

An order for re-engagement is made under s115 Employment Rights Act 1996 and is slightly wider than a reinstatement in that the employee can be re-engaged by the employer, by a successor to the employer or an associated employer in a role that was comparable to the one undertaken before dismissal or other suitable employment.

S115 Employment Rights Act also specifies what should be included in the re-engagement order. The issues which must be specified are:

  • The identity of the employer
  • The nature of the employment
  • The remuneration
  • Any arrears of pay and other benefits awarded for the period between dismissal and re-engagement
  • The rights and privileges, including seniority and pension rights, to be restored to the employee
  • The date on which the re-engagement is to take place

For most employers there may be no consideration of the employee returning to work, but if in the ET1 claim form the employee indicates they are looking at reinstatement and/or re-engagement as a remedy, then the Employment Tribunal must consider whether it is practicable for it to order either reinstatement or re-engagement. As such, it is an outcome, no matter how unwelcome, that the employer should bear in mind.

In the event that an employment tribunal claim is raised against you, please contact us NorthgateArinso Employer Services so we can defend it on your behalf.

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