When employees submit their claim form to the Employment Tribunal they have the opportunity to state what remedy they are seeking. For unfair dismissal claims, there are three options: reinstatement, re-engagement or compensation. Unsurprisingly, the overwhelming majority of claimants tick the box for compensation only. However, there are some cases where the employee wants to go back to work for their former employer, and despite the fact that it is relatively uncommon, Tribunal judges are trained to see reinstatement (and re-engagement) as the primary remedy for unfair dismissal.
Reinstatement is where the employee is returned to the role they were dismissed from, and re-engagement is where the employee is placed in a different role with the employer. For more information on reinstatement and re-engagement please see our previous article here.
In the case of Oasis Community Learning v Wolff (2012), Mr Wolff (a teacher) sought re-engagement following his successful unfair dismissal claim. His former employer was a large organisation with many different schools. The Employment Tribunal granted him re-engagement, albeit they specified that he was to be re-engaged at a different school in a different part of the country. This is because Mr Wolff had made allegations of misconduct against his employer as an institution and members of the HR department, but they did not feel this would prevent him being able to work at a different part of the employer’s organisation.
The employer appealed the decision and the matter was considered by the Employment Appeal Tribunal (EAT). The EAT held that in the particular circumstances of the case, the Employment Tribunal had not made any error in ordering for re-engagement at a different school in a different part of the country. The EAT said that in the case, the fact that Mr Wolff had made serious allegations against his colleagues at one workplace would not have an impact on his relationships at a different workplace.
The decision presents a cautionary tale for employers; not all unfair dismissal claims end in financial compensation only and other remedies can be ordered by the Employment Tribunal. However, we don’t know the rest of the story yet – did Mr Wolff actually end up going back? Although the Tribunal have the power to make an order for reinstatement or re-engagement, they don’t have the power to force an employer to comply. If an employer refused to take the employee back, they could be liable for an additional award (as detailed in our article here) as well as compensation for unfair dismissal, but as the maximum additional award is £23,400 there may be some situations where an employer would prefer to pay the penalty rather than taking back the employee.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).