Remedies: reinstatement or re-engagement




When the tribunal system was first devised, reinstatement and re-engagement orders were meant to be the primary remedy. An employee who claims unfair dismissal is entitled to ask for their job back. In practice, only a tiny fraction of successful claimants (less than one per cent) are reinstated or re-engaged. Most get financial compensation only. 



Victimised reps should always ask for reinstatement or re-engagement. Even if the tribunal does not make the order, asking for reinstatement can increase the amount of compensation awarded, or help secure a better settlement.




Under sections 113 and 114, ERA 96, tribunals can order an employer either to reinstate (give the employee their old job back with compensation for lost earnings) or re-engage (give the employee a suitable alternative job with compensation for lost earnings).



An order for reinstatement should place the claimant back in their old job on the same terms. It restores the original contract, including seniority and pension rights (London Probation Board v Kirkpatrick [2005] IRLR 443, McBride v Scottish Police Authority [2016] UKSC 27). By contrast, an order for re-engagement can involve a change of employer, or a change in the nature of the employment, or the contract terms, including wages (British Airways PLC v Valencia [2014] IRLR 683).



Tribunals have a wide discretion when deciding whether to order reinstatement, but they must take into account these 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.


The same three criteria apply in a case of re-engagement.



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



Reinstatement is hardly ever ordered if there has been a serious breakdown of trust and confidence (Wood Group 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 even though relationships at the school where the claimant worked had broken down, because he was willing to join a different school within the academy chain in a different part of the country. 




If a tribunal finds the employee partly responsible for their dismissal (known as contributory fault, see below), it is unlikely to order either reinstatement or re-engagement (Abimbola v Central and North West London NHS Foundation Trust UKEAT/0452/08).




In trade union-related dismissals, legitimate trade union activity must be disregarded when assessing contributory fault.




Where an individual is dismissed for illness or injury and is fit for work by their tribunal hearing, reinstatement can be ordered even though their state of health at the dismissal date would have justified an ill-health dismissal, had the employer followed a fair procedure (Arriva London v Eleftheriou [2012] UKEAT 0272/12/2011).




Reinstatement will almost certainly not be ordered where the role no longer exists, for example, after a redundancy or restructuring.




If the employer unreasonably fails to comply with the tribunal’s reinstatement order, an extra award of compensation, known as the additional award, can be made (see page 361).