One of the remedies (apart from compensation) that the Employment Tribunal has the power to award is that of reinstatement or reengagement if the employee wins the case. In this post we’ll take a look at the remedies of reinstatement and reengagement and consider when the Employment Tribunal will order such a remedy for a Claimant.
The first thing to note in considering reengagement and reinstatement is that such orders are extremely rare. Thus they’re realistically not usually an option in unfair dismissal cases. However, as stated above, the Employment Tribunal does possess the power to order such a remedy if the employee wins their case. In fact the Employment Tribunal must this specific power if the employee wins, regardless of whether the employee requested that remedy in their initial claim form (their ET1).
The Employment Tribunal must first consider whether reengagement (re-employment of the employee on a similar or comparable basis to their previous job) is appropriate. If inappropriate, the Employment Tribunal will then move on to consider whether reinstatement (re-employment in the same position) is appropriate. If the Employment Tribunal considers that reengagement is appropriate then a “Reengagement Order” will be made. Predictably, if the Employment Tribunal considers that reinstatement is the appropriate remedy then a “Reinstatement Order” will be made. An important point relating to these Orders is that the reemployment must not be on terms less favourable than the employee worked under before their dismissal.
The terms of a Reengagement Order must include:
- The employer’s identity (i.e. if the company is part of a large corporation then the employee may be re-employed elsewhere in the corporation); and
- The nature of the employee’s new employment; and
- The amount that the employee will be paid (on a weekly or monthly or annual basis); and
- The date that the employee will start work again
- The amount payable by the employer in respect of any benefit the employee might reasonably have expected to have had but for the dismissal
However, the employee can’t be doubly compensated for any losses they have accrued and therefore deductions must be made for any ex-gratia payments or wages received from a new employer.
The terms of a Reinstatement Order must delineate:
- When the employee will return to work
- The amount of missing wages and benefits that the employer must for the period between the employee’s dismissal and their reinstatement
A point to note is that such benefits include any rights that the employee would have been due in the period between their dismissal and their reinstatement (i.e. a promised pay rise). Again, the employee can’t be doubly compensated for any losses they have accrued and therefore deductions must be made for any ex-gratia payments or wages received in the meantime.