This article considers the situation where an employee dismissed in what they consider to be unfair circumstances asks the Employment Tribunal to order that they should, if successful in their claim, be re-employed by their former employer.
Reinstatement means re-employed in the same role and as if, from a pay, benefits and protection standpoint, they had never left. Not to be confused with re-engagement, which means to re-employed in a comparable role.
An employee who is reinstated or re-engaged is usually entitled to be reimbursed for all pay and benefits lost in the intervening period, which means this might be an enticing remedy available to a claimant in such a claim. In a standard unfair dismissal claim, a Statutory Cap is applied to limit the Compensatory Award, for dismissals on or after 6 April 2024, to the lower of one year’s gross pay or £115,115, so recovering earnings between the date of dismissal and re-engagement or re-instatement may be more than this cap
In The British Council v Mr P Sellers, the Employment Appeal Tribunal (EAT) looked at the questions that should be answered by an Employment Tribunal (ET) when considering whether to order reinstatement or re-engagement.
Mr Sellers was employed by the British Council as the Country Director for Italy. In this role, Mr Sellers headed up their Italian operation and, among other things, was responsible for developing and maintaining relations with key stakeholders.
Mr Sellers was dismissed after it was alleged he had deliberately touched the breasts of a female employee of the British Embassy in Italy as she went to leave a social gathering held at the flat occupied by Mr Sellers and his wife.
The ET found Mr Sellers was unfairly dismissed because the decision maker’s belief that Mr Sellers had done that act was (in the words of the EAT) “unreasonably derived from an overly narrow view, not supported by a reasonable investigation” and the appeal process had not rectified that deficiency.
It followed that remedy was considered and Mr Sellers confirmed he wanted to be reinstated or re-engaged. The ET declined reinstatement on the basis Mr Sellers had reached the end of his tenure in the role and was due to reapply, competitively, for a new role. The ET, however, granted re-engagement. This award was the main subject for the EAT’s deliberation.
The EAT considered the legal framework and said the ET must take into account: (a) the Claimant wishes; (b) the practicability of the arrangement; and (c) where the Claimant caused or contributed to some extent to the dismissal, whether it would be just to order the arrangement.
The EAT ultimately disagreed with the ET and held Mr Sellers should not be re-engaged because, having conducted a subsequent further investigation into the circumstances which had led to Mr Sellers’ dismissal, the British Council had a rational belief that he had committed misconduct, such that it would not be practicable for him to be re-engaged. The EAT noted that practicability had to be decided from the Employer’s perspective.
