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. Only five such orders were made for the year 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 three factors (section 116(1) ERA 96):

• whether the claimant wants reinstatement;

• whether reinstatement is practicable for the employer; and

• where 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. When deciding whether to order the re-employment of unfairly dismissed employees, the tribunal begins by making a provisional assessment of the practicability of re-employment. 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 (Prior v City Plumbing Supplies Ltd UKEAT/0535/11/CEA).

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).

The mere fact that someone has made allegations about their ex-employer during the tribunal claim will not be enough to show that the fundamental relationship has been destroyed. However, if a claimant’s behaviour during litigation has so soured the working relationship that it is impossible to work together again, the tribunal can conclude that reinstatement is impractical. In Oasis Community Learning v Woolff [2013] UKEAT/0364/12/MC, an academy chain argued that re-engagement was not practicable on this basis, but the tribunal ordered re-engagement because the claimant was willing to join an Oasis school 200 miles away.

If a tribunal finds the employee partly responsible for the dismissal (known as a finding of “contributory fault”, see page 311), it is unlikely to order re-engagement:

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). However, this would be unusual. Here is an example: