Tagged: remedies

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Try for re-employment

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.

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Past lost goes up to the hearing, even though the hearing is in the future

Most schedules of loss are divided into past loss (loss that has already been suffered) and future loss (loss that will occur in the future). With past loss the tribunal is trying to decide what has already happened, while with future loss they are predicting what will happen.

This distinction makes more sense in a example. If you are dismissed, you lose the salary you were being paid. Assuming that you have a tribunal hearing six months after your dismissal, and you are still unemployed, you have a past loss of six months earnings. That is money you would have been paid had you not been dismissed. Unless you have lined up a job starting the day after the tribunal hearing, you also have future loss — money that you wouldn’t have been paid yet, but would be expecting had you not been dismissed. So the tribunal needs to decide what that loss will be, by predicting when you will get a new job.

Normally, you will prepare your schedule of loss well before the hearing. But you should normally claim past loss up to the hearing (unless you know the loss will stop before that point, for example, if you’ve secured an equally well paying job). This is because the schedule will be used by the tribunal at the hearing. So it needs to reflect the position they will be in.

Otherwise, you get into a situation in which the tribunal is looking at a schedule thinking ‘I need to think about the past loss that is on this schedule as past loss. Then I need to think about the part of the future loss on this schedule that is actually now past loss. And then I need to think about the actual future loss.’ This is just too confusing.

This means that circumstances may change before the hearing, making the schedule inaccurate. For example, you may find a new job. If this happens, just update the schedule to reflect the new situation.

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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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Guest post: Keira Gore

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.

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Does a respondent’s ability to pay change the amount a tribunal will award for unfair dismissal?

No. It does not.

There has never been much doubt about this. Any uncertainty has been put to rest by the EAT in Tao Herbs & Acupuncture Ltd v Jin.

Judge McMullen Q.C. said:

19. The third ground advanced in this application relates to section 123. It is contended that the award to the Claimant was not just and equitable because it was substantial. I reject this as a proposition of law. In the calculation of loss for unfair dismissal the prime consideration is the loss suffered by the Claimant attributable to the action of the employer. The vehicle for the submission today is that if this award has to be paid, the business will go into liquidation.

20. That is not the correct approach to the assessment of an award for unfair dismissal, which does not pay attention to the ability of the employer to pay. There are places in the employment protection canon where ability to pay is a feature (see for example the costs regime). But in the assessment of damages for a statutory tort, the possibility that the employer will be in difficulty paying an award is not a relevant consideration.

This does not add significantly to our legal understanding, but it is a clear and concise statement of principle. It might be useful, therefore, in convincing a stubborn respondent that this is not a line worth taking.

One word of caution: while ability to pay will not change the tribunal’s decision there is, unfortunately, a gap between obtaining a tribunal decision and getting the money. This needs to be considered when making decisions about litigation.

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Rights, remedies, and jurisdiction

Having a right, for example the right not to be unfairly dismissed, or to have reasonable adjustments made to your disability, is one thing. But on its own, it is not worth much.

The best way of explaining why is a worked example:

s94 of the Employment Rights Act 1996 creates the right not to be unfairly dismissed. It does this simply enough, by saying in effect ‘An employee must not be unfairly dismissed by his employer.’ This right is then explained and detailed in the rest of the ERA.

But on its own, this really doesn’t do anything. You may have a right, but what happens if it is breached? What, in other words, is your remedy?

This is set out in some of the later sections of the ERA, s112-126. These set out the basic and compensatory awards – as well as the various re-employment orders that might be made

So this far, you have both a right and a remedy. But even this isn’t enough. You need a way of getting your remedy. Otherwise your employer could say “Yes, you should not have been unfairly dismissed, and I should pay you compensation – but what are you going to do about it?”

The answer, of course, is that you are going to go to an employment tribunal. But if you are to do so, the tribunal must have jurisdiction. That is to say, it must have the legal power to deal with your claim. That’s set out in s111 ERA, which tells us ‘A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.’ Without s111, the tribunal wouldn’t be able to hear any unfair dismissal claims. And because it says that unfair dismissal claims will be heard by the employment tribunal, they cannot be dealt with by another court. If you tried to bring an unfair dismissal claim in a County Court, it would be rejected, because the County Court does not have jurisdiction.

All this is important, because there are traps for the unwary. You must not assume that, just because you have a right, you are entitled to compensation in a particular way or that you will be able to bring a claim to the tribunal.

For example, the Working Time Regulations 1998 contain a right that you will not have to work more than 48 hours a week (unless you agree in writing to opt-out) and that night workers do not have to work more than eight hours at a time. But there is no entitlement to compensation if these rights are breached and you cannot bring a claim to the employment tribunal about them. They are enforced by the Health and Safety Executive, and various other Government agencies.

For each claim you bring to the tribunal you must have some idea of what compensation can be awarded, and where the tribunal’s jurisdiction comes from. Otherwise you may be caught out: at best, you’ll have have wasted your time, and at worst you may have missed the chance to bring your claim in the correct forum, or risk an order that you pay the other side’s costs.

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How much will I get if I win?

This is one of the key questions you will want to know the answer to before you start employment tribunal proceedings; and having a reasonably realistic view of the value of your claim is essential if you are to negotiate sensibly, too.

The answer depends on the type of claim and a whole host of other specific circumstances, but it’s possible to give a few general pointers. In most cases, the idea will be to compensate you for what you’ve lost by reason of the unlawful conduct that forms the basis of your claim. There are exceptions, but they tend to involve fairly small sums. If your employment has ended, your main argument will be about lost earnings. If your claim is for discrimination, you will be making a claim for injury to feelings as well: most awards fall somewhere in the range £5,000 – £15,000, and awards over £25,000 are rare. If discrimination has caused significant injury to your health, you will be looking for an award for that, too: your starting point in assessing this is probably the Judicial Studies Board’s Guidelines for the Assessment of General Damages in Personal Injury Cases (9th ed, OUP £21.99)

In any case where you are claiming lost earnings because you have lost your job, you will be under a duty to ‘mitigate’ your loss. What that means is that just because you’ve been dismissed, however unfair (or discriminatory) the dismissal, you can’t expect to sit back and claim lost earnings for the rest of your career. You are expected to try to find another job. If there are good reasons why you can’t, or why any job you are likely to get will be for a much lower wage than you were earning before, you’ll need to be able to explain. (See ‘Mitigation‘) It is fairly rare that tribunals award compensation to cover more than a year or two’s lost earnings – and a few months is more usual. For the kinds of circumstances that might persuade them to look at a longer period, see ‘Push your luck,’ and ‘The mummy track.’

There’s a limit, currently £66,200, on what you can recover as compensation for most types of unfair dismissal – but most awards get nowhere near that limit. There’s no limit in theory to what you can get for discrimination or for a whistle-blowing dismissal, but that doesn’t mean that awards have to be huge. In 2006/2007 (2007/2008 figures are not yet available), the median award for unfair dismissal was £3,800; and the medians for race, sex and disability discrimination cases were about £7,000, £6,700 and £8,200 respectively.

In particular, don’t let newspaper reports of awards in the hundreds of thousands, or even milllions, give you the wrong idea. Tribunals do occasionally make very large awards – and those, of course, are the ones that hit the headlines – but they are rare. The best way of getting a huge award is to have an extremely well-paid job to start with: if you’re being paid in the hundreds of thousands every year, then you’ll clock up large losses in a short period out of work. People earning normal salaries will only get large awards if they can show that they are likely to suffer a very long period of future loss. That – because of the duty to mitigate – is usually difficult.

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Months to weeks and weeks to months

Quite often you will have a monthly figure, when you want a weekly one, or a weekly one when you want a monthly one.

Monthly to weekly

Multiply the monthly figure by 12. This gives you the yearly figure. Then divide by 52.

Weekly to monthly

Multiply the weekly figure by 52. This gives you the yearly figure. Then divide by 12.

Warning

This is a straight mathematical exercise. It assumes that the figure you have is representative. If it is not, your result will be misleading. Say for example, that you use a week where the claimant was paid an unusually large or small amount, your monthly figure will be correspondingly large or small.

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Statutory payments calculators

It is a truth generally acknowledged that Her Majesty’s Revenue and Customs are evil. But nobody is totally evil. And even the Revenue has its good points.

One of these is that they provide some useful online help for calculating certain statutory payments. If you need to calculate:

  • Statutory Adoption Pay
  • Statutory Maternity Pay
  • Statutory Paternity Pay
  • Statutory Sick Pay

You can enter the relevant information on the Revenue website and it will do the hard sums for you.

Statutory payments calculators

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Reinstatement and re-engagement

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.