A right to re-engage?
Ian Machray explores whether a tribunal can force an employer to re-engage a dismissed employee?
In a recent case, the Court of Appeal (CoA) considered whether an employee, who had been unfairly dismissed, had a right to be re-engaged or re-instated.
Re-engagement is the act of re-employment into a comparable role or into other suitable employment, but not necessarily into the same role. Re-instatement requires the employer to treat the employee as if they had never been dismissed.
Under the Employment Rights Act, if an employee has been unfairly dismissed the employee may apply for and the Tribunal may grant:
- an award of compensation for unfair dismissal; or
- an order for re-engagement or re-instatement; and
- make an ‘additional award’ of compensation to be paid by the employer if an order for re-instatement or re-engagement is not fully complied with.
This ‘additional award’ should be an amount not less than 26 but not more than 52 weeks’ pay, capped at £27,300.
In this case, Dr Mackenzie had worked for the University of Cambridge as a lecturer until unfairly dismissed. The University accepted that they had unfairly dismissed her. Dr Mackenzie applied for an order for re-engagement, which the Tribunal duly awarded. In addition, the Tribunal awarded a sum of compensation if the terms of the order were not fully complied with.
The University failed to re-engage Dr Mackenzie since they asserted that the re-engagement was impractical. She argued that the Tribunal’s order for re-engagement created an obligation on the University to re-engage her and that they had breached the order by not doing so. She continued to work for the University on a self-employed basis. The CoA asserted that the ongoing relationship indicated that the employment relationship had not irretrievably broken down and there was no practical reason why she should not be re-engaged.
However, the CoA held that the “order for re-engagement” is not intended to impose an absolute and indefeasible obligation on employers to re-engage (or re-instate) the individual, or a collective right for employees to be re-engaged (or re-instated). Accordingly, the University was perfectly entitled to refuse to re-engage her providing they paid her the ‘additional award’. The University paid the maximum award and had therefore met their obligations.
Employers will be pleased to learn that there is no breach by failing to actually ‘re-engage’ an employee and there is no Human Rights argument that requires re-engagement to take place.