If you win your unfair dismissal case employment tribunals can in some circumstances order your employer to re-employ you. (See generally this previous post.) There are two types of re-employment orders: ‘reinstatement’ which means giving you your old job back; and ‘re-engagement’, which means giving you a different job that is comparable to your old job, or otherwise suitable. These orders are rare, but in the right case they are achievable.
If you want to apply for re-engagement, ask your old employer for a list of their current vacancies together with job descriptions. You will need to identify a job from that list that you are willing and qualified to do. The best type of job will be one that is similar to your old job in pay, skill and grade. Having identified the job/s that you think are suitable, tell the tribunal why you say re-engagement will work.
The tribunal has a wide discretion to order re-engagement on such terms as it considers just, but that doesn’t include a power to order re-engagement for a trial period. So if you want to try the new job before committing to it, you could ask the tribunal to adjourn your remedy hearing to allow the parties to conduct their own trial period. Obviously there’s no future in this unless the employer is willing to contemplate a trial re-engagement. You could point out that a trial can go two ways: if it demonstrates that you’re well-suited to the new job, they don’t need to waste time and energy opposing your claim for re-engagement; but if it goes badly, the likelihood is that you will drop your claim for re-engagement – and even if you don’t, they will be in a stronger position to say that re-engagement is not practicable.
When seeking the adjournment ask the tribunal to schedule a future telephone case management discussion (CMD) for shortly after the end of the trial. If the trial failed, you can ask the tribunal at the CMD to schedule a future remedy hearing. At that remedy hearing you can claim for loss of earnings (including future loss).
If re-engagement is agreed remember to ask your employer for compensation for lost earnings from dismissal to the date of re-employment before negotiations are finalised.
Keira Gore is a barrister at Outer Temple Chambers.