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Although rarely applied, reinstatement or re-engagement orders have the potential to cause employers much embarrassment, as well as leaving them stuck with an employee they do not want.  This article looks at remedies available at Employment Tribunals and gives tips to reduce the risk of a reinstatement or re-engagement order being made.

When an Employment Tribunal upholds an unfair dismissal complaint, there are three remedies available which it must consider. These must be assessed in the strict order of reinstatement, re-engagement, and compensation.

Unfair dismissal tribunal

The recent Employment Appeal Tribunal (EAT) case of Rembiszewski v Atkins Ltd [2012] provides clarification on re-engagement and reinstatement orders. The Employment Tribunal held that the claimant had been unfairly made redundant but it did not order re-engagement. The claimant appealed, arguing that he should have been reinstated or re-engaged, while the company argued that the claimant’s alleged lack of trust and confidence in the respondent rendered re-employment impracticable.

The EAT held that the Employment Tribunal should have considered the practicability of re-engaging the claimant at the time of the remedy hearing, i.e. the date re-engagement would take effect.  The EAT also found that the tribunal should have taken into account any loss in confidence shown by the claimant in relation to his former employer.

Unfair dismissal remedies

Compensation is awarded where the Tribunal does not believe that orders for reinstatement or re-engagement are appropriate. An award would include a basic amount  (intended to compensate the claimant for loss of job security) and possibly a compensatory award for financial loss suffered as a result of the dismissal.

An order for reinstatement results in the employee resuming his or her old job and being treated “in all respects as if he had not been dismissed.”

If the Tribunal decides not to order reinstatement, it will consider re-engagement orders. Re-engagement involves the employee being given a comparable role to the one they were in before dismissal, or other suitable employment.

The re-engagement must be on terms which are, so far as is reasonably practicable, as favourable as an order for reinstatement.  The re-engagement does not necessarily need to be with the same employer but could be with a company in the same group, for example.

The particular factors that Tribunals must take into account when considering reinstatement or re-engagement orders include:

  • Does the claimant want such an order to be made?
  • Is it practical for the employer to comply with the order?
  • Would it be just to make such an order if the claimant’s conduct contributed to the dismissal?

This is not an exhaustive list, as Tribunals have a wide discretion to take into account other factors.

Resisting reinstatement orders

If the employer refuses to comply with reinstatement or re-engagement orders, there will be a hearing at which the employer must show, on the balance of probabilities, that complying with the order was impractical. If the employer cannot show this, the tribunal must make an additional award of compensation to the employee of between 26 and 52 weeks’ pay. Cases such as Rembiszewski, above, have explained how an employer can resist such orders:

  • Employers must show that reinstatement or re-engagement was not practicable in the circumstances of their business at the relevant time;
  • If the dismissed employee has been replaced, the Tribunal will ignore this fact unless the employer can show it had to engage a permanent replacement in order for the dismissed employee’s work to be done, or that a reasonable period had passed without word from the dismissed employee about whether they wanted to be reinstated and there was no reasonable alternative to hiring a permanent replacement;
  • If relations have broken down between the claimant and his or her colleagues, the Tribunal is unlikely to make an order;
  • Breakdown of trust and confidence between employer and employee is unlikely to result in an order being made;
  • Capability and ill-health may render it impractical for the employee to return to work;
  • Reinstatement is unlikely where the employee’s conduct related to an established and admitted act of dishonesty. However, a re-engagement order is possible at a lower grade than the original one to take in to account the contributory conduct of the employee.

It is possible to resist re-employment orders and pay compensation instead. If the employer believes that re-employing an individual has any benefit to the business, an order for re-employment would be appropriate. If not, then employers have until the date of the remedy hearing to convince the Tribunal that any such Orders are impracticable.

For more information on any of the issues raised in this article, please contact our Employment Law team.