Even the Employment Tribunal sometimes forgets that there are 3 remedies for unfair dismissal

09 Nov 2011

By far, the most common remedy for unfair dismissal is compensation, however, a Claimant can request two other remedies; reinstatement or re-engagement.

A reinstatement order requires the employer to put the employee back into the position that they would have been in had they not been unfairly dismissed. This involves re-employing the employee on the same terms of employment and compensating them for any benefits that they have lost whilst they have not been working, including salary, pay rises, pension, any bonus payments and continuity of employment.  

Re-engagement is used if the Tribunal considers that re-instatement would not be appropriate.  This remedy is not so wide as it merely involves the employer re-employing the employee on new terms, without loss of continuity of employment.

In the case of King v Royal Bank of Canada 2011 the Claimant was dismissed by reason of redundancy.  In her ET1 Claim Form, the Claimant had asked for re-instatement and she also confirmed in her witness statement that she was seeking re-engagement.

The Claimant represented herself at the hearing and the Tribunal found that the dismissal was automatically unfair because there was a complete failure to follow the Statutory Dismissal Procedure, which has since been repealed.  The Tribunal concluded that there was a real redundancy situation because there was no suitable alternative job so the dismissal was not substantially unfair, even though it was technically an automatic unfair dismissal.  

When it came to consider a remedy, the Tribunal awarded compensation for financial loss but overlooked the issue of reinstatement or re-engagement, despite the Claimant having indicated that she was interested in these remedies.  The Claimant appealed to the Employment Appeals Tribunal (EAT).

The EAT found that the Tribunal was wrong not to consider the alternative remedies of reinstatement or re-engagement and that finding that a dismissal was genuinely on the grounds of redundancy does not remove the need to consider these remedies.

The EAT held that the Tribunal's failure to deal with the remedies of reinstatement and re-engagement constituted a "striking omission".  They said that Tribunal wrongly restricted itself to considering only vacancies at the time of the Claimant's dismissal as the situation with regard to possible vacancies may have changed between the date of dismissal and the period during which the employer ought to have followed a fair procedure.