Two often overlooked remedies open to an Employment Tribunal have been examined in a recent Employment Appeal Tribunal case. These are reinstatement and re-engagement. The former is the employee returning back to work as if they had never been dismissed; the latter involves the employee engaging in employment similar to their initial job or in other suitable employment.
The case involved a support worker employed by Lincolnshire Council. She was unable to work outwith school hours after becoming a foster carer. Her employer respected this and allowed her to take both unpaid leave and time off in lieu for shifts not during school hours. The support worker was then dismissed after refusing to change her working hours. She won her unfair dismissal claim and sought either reinstatement or re-engagement.
The tribunal found reinstatement was not an option as relationships with her colleagues had broken down. Therefore, the tribunal made a re-engagement order as the council was one of the biggest employers in the area. The EAT found that the order made by the tribunal was insufficient. The 1996 Employment Rights Act dictates information that is required to be in a re-engagement order.
- the identity of the employer;
- the nature of employment;
- the remuneration;
- any amount payable by the employer in respect of any benefit;
- any rights and privileges; and
- the date by which the order must be complied with.
The tribunal must also consider any wish expressed by the claimant; whether it is practicable for the employer to comply with the order and whether re-engagement would be just, but only if the employee contributed to the dismissal. Here, the tribunal failed to identify in any detail the nature of employment. The claimant also failed to seek re-engagement on a general basis, meaning that the employer was unprepared at hearing.
This is a welcome result for employers. Although compensation claims will continue to dominate the tribunals, if an employee wants to return it is important to remember that the onus is on the employee to identify roles that they can take on. They should also identify necessary arrangements for their employment so employers can attend a hearing prepared to deal with viability of changes.