Everyone who has anything to do with employment law knows that reinstatement and re-engagement orders are incredibly difficult to get. They’re rare (really, really rare: awarded in something like 0.01% of successful claims) so mostly people don’t even bother asking. That means that even in cases where a tribunal might have made such an order, it doesn’t – because the claimant hasn’t asked.
But if you’ve been unfairly dismissed, you have lost your job when you shouldn’t have. It’s obvious that the best way of making that right is to give you your job back.
So if you win your unfair dismissal case, ask for reinstatement or re-engagement. Put the rarity of such orders out of your mind, and concentrate on the obvious justice of giving you your job back if you shouldn’t have been sacked in the first place.
This became more important with the reduction of the cap on unfair dismissal compensation to a year’s pay. If you’ve lost a modestly-paid job in circumstances that mean you’re going to lose a lot more than that (Michael gives an example of how this can happen here), reinstatement or re-engagement is the only way you can head off those losses. You could point that out when asking for reinstatement or re-engagement.
See earlier posts on re-employment here.
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.
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.
Or more specifically, what you ask for.
A previous post advised that a request for reinstatement or re-engagement can be a powerful negotiating lever, because as a rule employers really hate the idea of taking a dismissed employee back. This is true, but you do also need to have thought through the possible consequences if your former does offer to re-employ you.
Obviously if this is what you really wanted, that’s fine. But if you were bluffing in the hope that an application for re-employment would scare your former employer into increasing its settlement offer, and the truth is you can’t think of anything you’d hate worse than going back to work for them, you’ve painted yourself into a bit of a corner. If you change your mind now and say ‘on second thoughts I just want compensation,’ your employer will point out that it was open to you to mitigate your loss 100% from whenever they offered you your job back, and the likelihood is that you won’t get a penny in compensation for future loss.
All employment lawyers know that orders for reinstatement (getting your old job back) and re-engagement (getting another job with your former employer) are extremely rare. To some extent this has probably become self-fulfilling: everyone knows that these orders are rare, so hardly anyone bothers to apply for them. That is part of the reason they are so rare.
In fact, it is very often a good idea to try for re-employment (employment lawyers tend to use this term to cover reinstatement or re-engagement). There are two main reasons. The first is that it is something that, as a rule, employers really hate. They hate it so much that a credible application for re-employment will often have a marked upwards influence on offers of settlement.
The other reason is that if re-employment is ordered, the claimant is entitled to be compensated in full for all her lost earnings from dismissal to the date of re-employment: the statutory limit does not apply. Where losses to the date of the hearing exceed the statutory limit, therefore, an application for re-employment should always be vigorously pursued unless it is clear that it is hopeless.
Bear in mind that on an order for re-engagement, the tribunal has a wide discretion to order re-engagement on such terms as it considers just. So take the widespread assumption that re-employment is impossible if there has been any significant contributory fault with a large pinch of salt. Where there has been misconduct, for example, but not sufficient to justify dismissal, there is no reason why the tribunal should not order re-engagement to a lower-paid post, or with a disciplinary warning.
Do not rule out re-employment just because it is not practicable for the claimant actually to return to work, either: re-engagement with immediate medical retirement will sometimes be an option worth considering.