The vast majority of successful Employment Tribunal claims for unfair dismissal result in financial compensation being awarded to the claimant employee. However, it is worth remembering there are other remedies that a Tribunal can award to a successful claimant which are often not considered – although these are usually rare in practice, the team at Pure are dealing with a few at the moment! These are as follows:
- Reinstatement – the claimant employee is reinstated to their job and treated as though they have never been dismissed (including payment of backdated salary and preserving the employee’s service with the employer).
- Re-engagement – the claimant employee is engaged by the employer in employment comparable to that from which he/she was dismissed or other suitable employment on terms which are, so far as reasonably practicable, as favourable as reinstatement.
When deciding whether or not to make an order for reinstatement or re-engagement, a Tribunal will consider relevant factors, such as:
- The wishes of the employee.
- Whether it is reasonably practicable for the employer to comply.
- Whether the claimant employee contributed to their dismissal.
A Tribunal is obliged to explain to a claimant about these remedies and to invite the claimant to indicate whether they wish any such order to be made. This duty applies every time a Tribunal makes a finding of unfair dismissal, regardless of whether the claimant has actually sought these remedies. If the Tribunal fails in this duty, the claimant employee can challenge the decision by appealing to the Employment Appeal Tribunal. Such an appeal can result in the case being referred back to the Tribunal for reconsideration.
This occurred very recently in the case of Rembiszewski v Atkins Ltd (2012). This case involved a redundancy situation where it would seem straightforward that the claimant’s job no longer exists so reinstatement could not be ordered, or that suitable alternative vacancies are not available so re-engagement of the employee would not be possible. However, the principle is that the practicality of an order for re-engagement or reinstatement should be considered at the date it is to take effect, rather than at the date of dismissal. This will usually mean assessing the position as at the remedies hearing once a finding of unfair dismissal has been made. Given that Tribunal cases can take many months to complete, employers could find that they do have suitable employment vacancies at a later date and they may have to re-engage the claimant employee if ordered to do so.
Failure to comply with an order for reinstatement or re-engagement can be costly as a Tribunal will then make an additional award for non-compliance to the claimant of between 26 to 52 weeks’ pay (subject to the statutory caps), as well as making an order of compensation for unfair dismissal.
We can help with Tribunal claims, including advising on remedies. Please call us on 01243 836840 for a no obligation chat or email us at [email protected].