When can tribunals order employers to take back claimants or return them to their former roles?
It is very rare in unfair dismissal cases for an employment tribunal to make an order compelling an employer to re-employ the employee. Tribunals usually take the view that the trust and confidence in the employment relationship has broken down to such an extent that ordering the employer to take the employee back would be impracticable. However, when such an order is made, tribunals must consider whether an order for reinstatement (returning employees to their former role) or for re-engagement (returning to the employer in another capacity) would be more appropriate in the circumstances.
Facts
Valencia was a member of cabin crew at British Airways. He was dismissed following an investigation into an incident on a flight and allegations that his behaviour was a threat to safety. He brought claims for unfair dismissal and disability discrimination.
Tribunal
The employment tribunal dismissed the disability discrimination claim but upheld the unfair dismissal claim, although it found Valencia’s own actions had contributed to a large extent to his dismissal. Because of this, the tribunal thought a reinstatement order would be unjust. However it made what it said was a re-engagement order instead, stating that he should be re-engaged in the same role and on the same terms as he had been prior to his dismissal. It reduced the compensation awarded to reflect the fact that he had contributed to his own dismissal. The employer appealed.
EAT
The Employment Appeal Tribunal looked at which type of order - reinstatement or re-engagement – would be justified in which circumstances.
Reinstatement - requires claimants to be treated as if they had never been dismissed; they return to their pre-dismissal job, in the same role, under the same terms, and working with the same colleagues as before.
Re-engagement - is much more flexible. Employees are re-engaged by their former employer, or by an associated employer, in a role that is comparable to the previous one, or to other suitable employment. A re-engagement order is, therefore, much wider and gives tribunals much more discretion over the type of role the employee can be offered.
A clear example of when a re-engagement order would be justified, but a reinstatement order would not, is where an employee’s line manager has lost trust and confidence in the employee but there is a similar role, reporting to a different line manager in another part of the organisation, where the trust and confidence in the employee remains.
In this case, the EAT noted that the re-engagement order was, in effect, a reinstatement order. This was wrong in principle and not permitted under the statutory scheme. Furthermore, given that the re-engagement order was just a reinstatement order under a different name, the EAT found it difficult to see how Valencia’s conduct made his reinstatement unjust but not the ‘so called’ re-engagement order. The EAT allowed the appeal and ordered the re-engagement order be set aside.
Comment
Reinstatement and re-engagement orders are difficult for employers, particularly as they are usually accompanied by an order to make up pay between the date of dismissal and the date of re-hiring.
This case sounds a warning to employers, particularly large organisations, not to be blasé about any such requests and to be prepared to argue not just why reinstatement should not be ordered but also why re-engagement should not be either.
Hannah McIlwraith is a trainee and Paul Mander a partner in the employment department of Penningtons Manches.
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