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Reinstatement or re-engagement
When the tribunal system was first devised, reinstatement and re-engagement orders were supposed to be the primary remedy. However, in practice, they are extremely rare. Only five orders were made for the whole year leading up to March 2012.
Under sections 113 and 114 ERA 96, tribunals can order an employer either to reinstate (give the employee their old job with compensation for lost earnings) or re-engage (give the employee a suitable alternative job with compensation for lost earnings). Reinstatement restores the original contract and preserves continuity (London Probation Board v Kirkpatrick ([2005] IRLR 443).
Employment tribunals have a wide discretion on reinstatement but must take into account, in particular, three factors under section 116(1) ERA 96: (a) whether the claimant wants reinstatement, (b) whether reinstatement is practicable for the employer; and (c) where the claimant caused or contributed to some extent to his dismissal, whether reinstatement would be just.
Employers cannot avoid their obligations to reinstate or re-engage simply by showing they have already hired a replacement. When deciding whether to order the re-employment of unfairly dismissed employees, the tribunal must make a provisional assessment of the practicability of the employer complying with the order. A final decision is only made if the employer refuses to comply (Port of London Authority v Payne and Others [1994] IRLR 9). A tribunal refusing a request for reinstatement or re-engagement must always give reasons for refusing (Prior v City Plumbing Supplies Ltd UKEAT/0535/11/CEA).
Reinstatement will hardly ever be ordered where there has been a serious breakdown of trust and confidence (Wood Green Heavy Industrial Turbines Limited v Crossan [1998] IRLR 680). The mere fact that the employee made allegations about the employer while presenting his tribunal claim will not, on its own, be enough to show that the fundamental relationship has been destroyed. However, if a tribunal finds the employee partly responsible for the dismissal (known as a finding of “contributory fault”), it is unlikely to order re-engagement:
A psychiatric nurse was dismissed for gross misconduct after allegedly holding an agitated patient in a headlock. His unfair dismissal claim succeeded and reinstatement was ordered. The employer did not want to take him back and appealed to the EAT which overturned the reinstatement order.
Abimbola v Central and North West London NHS Foundation Trust UKEAT/0452/08
The limits of the law on reinstatement when faced with a recalcitrant and well-resourced employer are well illustrated by the following case — that of an NHS Trust that chose to spend taxpayers’ money to flout an employment tribunal’s re-engagement order:
Mr Bakhsh, a mental health nurse and UNISON activist, worked for Northumberland Tyne & Wear NHS Foundation Trust for 20 years. He was suspended and dismissed following an anonymous letter complaining about his behaviour when carrying out trade union activities. In 2010, Newcastle Employment Tribunal found the dismissal automatically unfair on grounds of lawful trade union activities. The Trust had also engaged in disability discrimination. A re-engagement order, together with an order for the maximum compensation under the statute, was not appealed by the Trust.
When Mr Baksh reported for work under the re-engagement order, the Trust handed him a letter stating that he would not be re-instated because it was clear he intended to continue with his lawful trade union activities. He returned to the tribunal who described the Trust as being “in flagrant breach” of its Order and awarded him further compensation — the maximum (capped) award for non-compliance. It was, according to the tribunal, a “decision taken by public officials to use public money allocated to the Health Service to flout an order of the tribunal”.
Mr Baksh has been given permission to proceed to a full judicial review of the Trust’s refusal to re-engage him, arguing, In particular, that as a public body, the Trust is infringing Mr Baksh’s fundamental right to freedom of association under Article 11 of the European Convention on Human Rights.
The Queen on the application of Yunus Bakhsh v Northumberland Tyne & Wear NHS Foundation Trust [2012] EWCH 1445
Sometimes, reinstatement can be ordered even though the tribunal has made a “Polkey” reduction (i.e. a cut in the claimant’s compensation to reflect the likelihood that dismissal would have followed a fair procedure). For example, in Arriva London v Eleftheriou (UKEAT/0272/12/LA), defects in the capability procedure used to dismiss bus driver Mr Eleftheriou, who was off work on long-term sick leave, meant that the dismissal was procedurally unfair. At the time of his dismissal, the state of his health meant that he could have been fairly dismissed if his employer had followed a fair procedure. But by the time of his tribunal hearing, he was fully recovered, so the tribunal awarded reinstatement.