Re-engagement order disallowed

We report on a case where an order for re-engagement has been considered by the EAT.

Background

The Claimant in this case, Miss Lupton was employed by Lincolnshire County Council. She resigned when the council sought to change her working hours. The resignation was held to be a constructive unfair dismissal by the Tribunal, because there had been no sound business reason for the change, it had been arbitrary, and no fair process had been followed.

Where an employee is successful in their unfair dismissal claim, as was the case here, they can ask the Tribunal to make an order for reinstatement or re-engagement.

A reinstatement order will put the employee back in exactly the same job as they had before, whereas a re-engagement order would mean giving the employee other suitable employment.

When considering an order for re-engagement, a Tribunal must, under the Employment Rights Act 1996, take into account the wishes of the claimant, the practicability of the re-engagement and whether or not it would be “just” to make the order or not.

Miss Lupton had been employed as a case worker in a youth centre, and it was conceded that reinstatement would be inappropriate because the relationship had broken down there. There were another 3 vacancies in her area, none of which involved working in a youth centre. Miss Lupton did not say that she wanted to be deployed into any of these posts. The Tribunal consequently made an order that Miss Lupton be re-engaged in a part-time position, working the same hours as she was before, in the same locality. It further ordered that the new position should be “suitable” having regard to Miss Lupton’s background and experience.

The Appeal Tribunal were not happy with this order, and compelled the Employment Tribunal to reconsider it for the following reasons.

Firstly, the order was far too general and unspecific. If a specific job is not identified, as was the case here, the alternative role needs to be identified with reasonable precision. This is the case even though the Tribunal does have a wide discretion in terms of re-engagement.

Second, there was a procedural issue in that the Employment Tribunal had not given the Council an opportunity to present any evidence as to what jobs were available etc.

Third, a respondent should not be put under an obligation to find a position for a claimant irrespective of whether they had any actual vacancies or not.

Implications

This case highlights the importance of proper preparation for such a reinstatement or re-engagement application. If an application is made without notice, respondents should seek an adjournment so that they can prepare. If the remedy is sought in the claim form itself, they should come to the Tribunal prepared to deal with it.

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