Should employee reinstatement or re-engagement after unfair dismissal be a real concern for employers?
Although rarely made in practice, employment tribunals are obliged to consider whether to make an order for reinstatement or re-engagement in cases of unfair dismissal under the Employment Rights Act 1996.
Definition
Reinstatement sees the employee returning to his or her original job under all the same conditions, as if they had never been dismissed, while re-engagement calls for the employee to be engaged in a different but comparable job with the original employer or by an associated employer, or to other suitable employment.
While tribunals must consider both options, regardless of whether the claimant has selected the reinstatement/re-engagement box on the tribunal claim form, in most cases they take the view that the employment relationship has deteriorated to such a point that ordering either would not be in the best interests of the employee or employer. In a small number of cases, however, the tribunal has opted for one or the other as the most suitable solution.
Case study
The CIPD reported a case in which a teacher at an institution that specialised in turning around failing schools was dismissed following numerous allegations about his confrontational approach to dealing with difficult pupils. The teacher brought an unfair dismissal case against his employer and during proceedings it became clear that there had been serious defects in the manner in which his dismissal had been handled to the point that the employer agreed that the claimant had been dismissed unfairly.
Findings and appeal
The employment tribunal ordered that the claimant be re-engaged at another of the employer’s schools with no loss of continuity. The employer appealed, stating that the claimant had harassed members of its staff, including the HR department and the chief executive, with aggressive correspondence and offensive allegations, to such an extent that re-engagement would be impracticable.
The Employment Appeals Tribunal (EAT) dismissed the employer’s appeal, stating that the matter had been properly considered by the tribunal and that the claimant’s allegations against colleagues and managers at one school would not have an impact on his relationship with staff at a different school 200 miles away.
Comment
So, should employers be concerned about employee reinstatement or re-engagement after unfair dismissal? While it’s important to bear in mind that orders for re-instatement and re-engagement are rare, employers, especially those with multiple sites, should be cautious to that fact that they can be enforced, even in cases when it has not ben asked for in the claim form and where circumstances such as the employee’s conduct strongly suggest otherwise.
