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Appeals and reinstatement/ re-engagement

Employers, as we have remarked before, tend to hate the idea of re-employing an employee they have dismissed (see Reinstatement and re-engagement; but also Be careful what you wish for ). They will normally insist that it is not practicable.

One point to bear in mind in this context concerns your appeal against dismissal. Your employer presumably maintains that the decision-maker approached your appeal in good faith and with an open mind. It would seem to follow that if you’d won your appeal, you would have been reinstated – or conceivably re-engaged. It’s worth exploring that a bit when you’re cross-examining the person who heard your appeal, to make it harder for your employer to say later on, when you’re arguing about remedies, that it’s not practicable to re-employ you. If it was open to the decision-maker to allow your appeal and let you return to work, why isn’t it practicable now?

This isn’t bound to succeed, of course: things may genuinely have changed between the appeal and the ET hearing; or some of the reasons why you lost your appeal may contribute to its being impracticable to re-employ you now, even though your dismissal was unfair. But it might usefully block some of your employer’s lines of escape.

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