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Reinstatement
[ch 4: page 69]The law does not allow tribunals to compel employers to reinstate workers who have been dismissed for taking a stand on health and safety. Reinstatement orders, in general, are very rare, although in a recent case backed by public services union UNISON, a tribunal ordered Cardiff and Vale University Health Board to give nurse Karen Allen-Powlett her job back and pay her compensation for her loss of earnings. She was sacked for frequent short-term sicknesses at a time when she was experiencing domestic violence, but the tribunal found that the NHS Trust had acted unfairly in dismissing her.
Often the only way to secure the reinstatement of health and safety reps is through the threat of industrial action, as the experience of an RMT rep demonstrates.
In May 2011, Bakerloo Line drivers’ health and safety rep Eamonn Lynch was reinstated by London Underground following a threat of industrial action by transport union RMT. A tribunal had earlier made a full pay interim relief order in favour of Mr Lynch (see page 74) before confirming that he was automatically unfairly dismissed for health and safety reasons. This case shows how tribunal rights on their own are often insufficient to protect the rights of safety reps. What is required in addition is a high level of collective organising, and a willingness to act collectively to support these rights.
Lynch v London Underground, Employment tribunal 2011, unreported
Even though reinstatement orders are rare, safety reps should always ask for reinstatement, as successful compensation awards may be higher if the employer refuses. If the tribunal makes an order for reinstatement or re-engagement but the employer does not reinstate or re-engage and cannot show it was not reasonably practicable, the tribunal can make an additional award (on top of the compensatory award – see below) of between 26 weeks’ and 52 weeks’ pay, subject to the statutory limit to a week’s pay (£489 from April 2017). The minimum additional award is the lower of 26 weeks’ pay and £12,714, and the maximum is the lower of 52 weeks’ pay and £25,428 (from April 2017).