“I want my job back!” – when can the Tribunal give you your job back?

We at Farore Law specialise in complex employment litigation and frequently advise senior executives who have been dismissed from their jobs – some of them want to be re-instated to their previous roles or if that isn’t possible, to be re-engaged into a different role by their former employer.  You may ask, why would anyone possibly want to go back to their former employer who had treated them badly? Whilst it is an unusual ask, it is not uncommon – there are a number of reasons why an employee may want to go back. It may be, for example, the only way to get back on track with their career especially if they work in a regulated sector,  

Our partner, Rachel O’Connell, has recently represented a city trader in a successful unfair dismissal and wrongful dismissal claim. Our client wanted to be re-instated as a way of getting back into the City and into a leading institution.

There are other significant benefits in applying for reinstatement or re-engagement when it comes to remedies. 

In this blog, we will address ways in which a Claimant can seek reinstatement or re-engagement, what it means and the practicalities of seeking such remedy.

What is reinstatement and re-engagement?

A Tribunal has the power to make an order for reinstatement or re-engagement of the Claimant following a successful unfair dismissal claim. In practice, such orders are extremely rare – less than 1% of Claimants succeed in obtaining such orders.

Reinstatement is an order that requires the employer to treat the employee as if they had never been dismissed, which involves re-employing the employee on the same terms of employment, re-imburse them with all lost pay from the date they were dismissed to the date they are re-employed and to afford them the benefit of pay rises or other improvements to their terms had the employee not been dismissed.

Many times, reinstatement is simply not practical (for example, because the old role no longer exists or there is someone else performing the same role) and so a re-engagement order may be ordered in the alternative. This requires the employer (or an associated employer) to re-employ the dismissed employee on new terms that are comparable to their previous job or in other suitable employment. In making an order for re-engagement, the Tribunal can reach creative solutions. An investment banker based in London could end up being re-employed in the firm’s New York office as a result of an order for re-engagement, assuming that the Claimant is willing to relocate.

It should, however, be noted that there are also situations where re-engagement is simply not feasible. An example of this is where the employer’s organisation simply has no vacancies available.  External factors, such as the company undergoing massive redundancies, or the general state of the job market within a specific sector can make the possibility of re-engagement limited. A Tribunal will not go so far as to compel the employer to create a role for the Claimant.

Another reason why a Tribunal will refuse to make an order for reinstatement or re-engagement is when they conclude that trust and confidence has broken down irretrievably. A breakdown of trust and confidence may arise during the employment, but also due to events following a dismissal, including conduct in the tribunal hearing itself. Naturally, Respondents invariably argue that trust and confidence has broken down. 

We set out below some examples of cases where this was successfully argued by the former employer:

• in Kelly v PGA European Tour [2021] EWCA Civ 559, the employer relied on the fact that the employee disclosed covert recordings of meetings during Tribunal proceedings as a reason for showing that re-engagement would be impracticable. Covertly recording meetings can amount to gross misconduct depending on a company’s disciplinary or data protection policy and also amount to a breach of trust. 
• Ormrod LJ held in Nothman v London Borough of Barnet (No 2) [1980] IRLR 65 that ordering reinstatement is unthinkable in circumstances where the Claimant believes that they were the victim of a conspiracy by the employer.

Nonetheless, it may still be possible for the Tribunal to order re-engagement even if the Claimant has made serious allegations against their former employer. For example, if the employer in question is a large organisation, re-engagement could entail re-employing the Claimant under a different team or location and thereby allow the Claimant to work away from the perpetrators of the unfair dismissal.

Why seek reinstatement or re-engagement?

Although many Claimants are reluctant to seek reinstatement or re-engagement, and such orders are rarely granted by the Tribunal, there are good reasons why a Claimant may nonetheless try to seek such order:

• A reinstatement or re-engagement order requires the employer to make up all of the employee’s lost salary and benefits for the period between the dismissal and the date of reinstatement/re-engagement. This is not subject to the statutory cap for unfair dismissal claims and so may be desirable for high earners who are unable to bring a discrimination or whistleblowing claim because of the circumstances of their dismissal.
• If the employer refuses to comply with the order, the Tribunal will make an additional award, which is between 26-52 weeks’ pay and subject to the current statutory cap for unfair dismissal awards.
• Depending on the nature of the job market, it may be the only way a Claimant can get their career back on track.  

Farore Law is a boutique law firm that has a wealth of experience in advising senior executives facing dismissal from their employment. We have a proven track record of obtaining exceptional results for our clients, whether through settlement or the Tribunal process. We can help you.

Please contact us if you require assistance or contact Rachel O’Connell at Oconnell@farorelaw.co.uk.