Employers should take heed after an EAT ordered an organisation to take back an employee who allegedly harassed its HR department
In cases of unfair dismissal, the Employment Rights Act 1996 obliges an employment tribunal to consider whether to make an order for reinstatement (where the employee returns to his or her original job) or re-engagement (where the employee is engaged in a different, but comparable, job with the original employer). Such orders are rarely made in practice but tribunals have an obligation to consider them whenever they make a finding of unfair dismissal whether or not the claimant has ticked the reinstatement/re-engagement box on the tribunal claim form.
In Oasis Community Learning v Wolff,the Employment Appeal Tribunal (EAT) had to decide whether to uphold a tribunal decision to order re-engagement of a dismissed employee even though the circumstances would almost certainly have led the employer to believe that re-engagement would not be a possibility.
Facts
Wolff worked as a teacher for Oasis, an institution specialising in turning around failing schools. He was dismissed following numerous allegations about his confrontational approach to dealing with difficult pupils. He brought unfair dismissal proceedings against the employer and it became evident during the hearing that there had been serious defects in the manner in which his dismissal had been handled. On the final day of the hearing, Oasis agreed that Wolff had been unfairly dismissed.
Tribunal
At a hearing to decide on an appropriate remedy for the case, the employment tribunal ordered that Wolff be re-engaged at another of the employer's schools, in a different part of the country, with no loss of continuity. The employer appealed against this order on the basis that the claimant had harassed members of its staff, including the HR department and the chief executive, with aggressive correspondence and offensive allegations, to the extent that re-engagement would be wholly impracticable.
EAT
The EAT dismissed the employer’s appeal and said that the tribunal had considered the matter properly and that Wolff's allegations against colleagues and managers at one school would not have an impact on his relationship with staff at a different school 200 miles away (even though he had, apparently, insulted many people in the organisation’s central function).
Comment
Orders for re-instatement and re-engagement continue to be rare and the EAT made a point of stating that no general conclusions should be drawn from this case. It is, however, a warning to employers, particularly those with multiple sites, to be alert to the fact that such an order might be considered practicable by tribunals, even in situations where it has not been asked for in the claim form and where the specific circumstances, including the conduct of the employee, strongly suggest otherwise.
Anna Henry is a trainee and Paul Mander a partner at Penningtons solicitors
For more employment law
articles, visit HR-inform