Reinstatement or re-engagement

When the tribunal system was first devised, reinstatement and re-engagement orders were supposed to be the primary remedy, but in practice they are extremely rare.

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).

Tribunals have a wide discretion when deciding whether to order reinstatement, but must take into account three factors (section 116(1) ERA 96):

• whether the claimant wants reinstatement;

• whether reinstatement is practicable for the employer; and

• if the claimant caused or contributed to his dismissal, whether reinstatement would be just.

Employers cannot avoid their obligations simply by showing they have already hired a replacement.

Reinstatement is hardly ever ordered where there has been a serious breakdown of trust and confidence (Wood Green Heavy Industrial Turbines Limited v Crossan [1998] IRLR 680).

However, the issue is one of practicality. For example, in Oasis Community Learning v Woolff [2013] UKEAT/0364/12/MC, reinstatement was ordered although relationships at the academy where the claimant worked had broken down, because he was willing to join another school in the same academy chain 200 miles away.

The mere fact that someone has made allegations about their ex-employer during the tribunal claim will not be enough to show that the relationship has been destroyed.

If a tribunal finds the employee partly responsible for the dismissal (known as a finding of “contributory fault”, see page 320), it is unlikely to order re-engagement:

Note that in trade union-related dismissals, legitimate trade union activity must be disregarded when assessing contributory fault (see page 319).

Where an individual is dismissed for incapacity (illness or injury), but is fit for work by the date of the tribunal hearing, reinstatement can be ordered even though the claimant’s state of health at the date of dismissal was poor enough to justify an ill-health dismissal if the employer had followed a fair procedure at the time (Arriva London v Eleftheriou [2012] UKEAT 0272/12/2011).

Reinstatement is very unlikely where the role no longer exists, for example, after an unfair redundancy or restructuring exercise.