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Q: Employment reinstatement ( Answered 5 out of 5 stars,   1 Comment )
Question  
Subject: Employment reinstatement
Category: Miscellaneous
Asked by: dogsbollocks-ga
List Price: $5.00
Posted: 05 Aug 2003 12:16 PDT
Expires: 04 Sep 2003 12:16 PDT
Question ID: 240370
Is it a remedy under UK labour law to force an employer to reinstate
an employee in case of unfair dismissal ? If yes under what
circumstances ?
Answer  
Subject: Re: Employment reinstatement
Answered By: jumpingjoe-ga on 06 Aug 2003 10:32 PDT
Rated:5 out of 5 stars
 
Hi there, and thanks for your question!

If an employment tribunal finds that you have been unfairly dismissed
from your job, then it may order one of the remedies set out by
section 113 of the Employment Rights Act 1996. You can view this at
the HMSO website here:

- http://www.legislation.hmso.gov.uk/acts/acts1996/96018--n.htm#111

These remedies are either reinstatement or re-engagement. In the
former, the original dismissal is nullified, and to all intents and
purposes it will be as if the employee was never dismissed in the
first place.

An order for re-engagement on the other hand requires the employer to
give the employee a new job entirely. This order can also be made
against associated companies, such as parent companies and successor
companies (ie a company which has taken over from the original company
that dismissed the employee). The goal of the tribunal here will be
that the employee's new job will not put them in a worse position than
if they had not been unfairly dismissed. The tribunal can order the
terms of the new employer, for full details see section 115:

- http://www.legislation.hmso.gov.uk/acts/acts1996/96018--n.htm#111

If the tribunal does not wish to make either of these orders, then it
will order compensation. In "Employment Law" by Holland and Burnett it
is noted that reinstatenent/re-engagement orders were the outcome of
only 2% of cases.

Under section 116 the tribunal will first consider reinstatement, and
if that is not possible will consider re-engagement. In deciding
whether to grant the reinstatement order the tribunal will take into
account:
 (a) whether the complainant wishes to be reinstated
 (b) whether it is practicable for the employer to comply with an
order for reinstatement
 (c) where the complainant caused or contributed to some extent to the
dismissal, whether it would be just to order his reinstatement.
Please read that section in full:

- http://www.legislation.hmso.gov.uk/acts/acts1996/96018--n.htm#111

Practically, reinstatement and re-engagement are so rare because an
employee will often not wish to suffer the relationship that would
inevitably arise from returning to an employer he has just beaten at
an employment tribunal. Compensation is often the preferred remedy. If
the applicant does not want this kind of order, it will not be made.
It is as well for an applicant to request the order, indeed there is a
section on the IT1 form, that initiates a tribunal claim, where the
applicant can set out the remedy that he or she is seeking.

If an order to reinstate/re-engage is made, and the employer does not
comply with it, then the tribunal will order compensation instead, but
has a discretion to order extra compensation to reflect the employer's
refusal to comply with the original order. It has therefore been an
occasional tactic to request reinstatement in the hope it will be
refused and extra compensation awarded. This could certainly backfire
though if the employer did give you your job back!

To return to your question, the circumstances under which a tribunal
would make a reinstatement/re-engagement order could be summarised as
follows:
 - the employee wishes it
 - that the employer can reasonably comply with such an order
 - if the employee contributed in some way to his/her dismissal, that
in all the circumstances it would be 'just' to make the order (and
yes, that is as wide as it sounds)

I hope all this is clear, and if you have any questions at all please
request clarification prior to rating the answer. Thanks again for
your question.

Yours,

jumpingjoe-ga

Clarification of Answer by jumpingjoe-ga on 06 Aug 2003 10:35 PDT
...and just to include a search strategy for the sake of completeness:

- Personal knowledge
- Her Majesty's Stationary Office
  (http://www.legislation.hmso.gov.uk/acts.htm)
- Employment Law, Holland & Burnett, Oxford University Press, 2003
- Blackstone's Statutes on Employment Law, Richard Kidner (ed.),
Blackstone Press, 2002
dogsbollocks-ga rated this answer:5 out of 5 stars

Comments  
Subject: Re: Employment reinstatement
From: leli-ga on 06 Aug 2003 03:01 PDT
 
Nice to see you here again!

Afraid I haven't come up with an answer to the "what circumstances"
part of your question.
Employment tribunals *do* have the option of ordering that an employee
should be reinstated, but rarely use it.

Here's one example of a reinstatement order:
http://www.ananova.com/business/story/sm_437708.html?menu=
(Each brother was eventually offered 125,000 by Consignia in lieu of
reinstatement.)

From a BBC page:

"The nature of such dismissals are so varied that no specific rules
can be laid down. [...]The employment tribunal can make the following
orders:

* reinstatement (old job back)
* re-engagement (different job with your former employer)
* compensation

In practice, the last of these orders is the most common."
http://www.bbc.co.uk/watchdog/guides_to/employmentlaw/index6.shtml

Hope this helps - Leli

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