Re engagement following unfair dismissal

Posted 06/06/2013

In most cases of unfair dismissal, the remedy the Claimant is seeking is compensation only. However, it is possible for employees to request that, should their unfair dismissal claim be successful, they are either reinstated to their previous job or are re-engaged with the same employer in a different role.If a Claimant requests reinstatement or re-engagement, then a Tribunal has the power to make an order for the employee to be taken on again by the Respondent employer, but only where it is reasonably practicable to expect the employer to comply. In practice, orders for reinstatement or re-engagement are extremely rare and are made in less than 1% of cases. This is usually due to the fact that when matters have got to this stage, the relationship and trust and confidence between the employee and employer has broken down irretrievably – even if it had not done so beforehand, then it certainly would have following the Tribunal proceedings.However, a recent case shows an interesting set of facts where re-engagement was a viable prospect.In Oasis Community Learning –v- Wolff, Mr Wolff was employed by a company specialising in taking over failing schools in order to improve them. Mr Wolff started work for Oasis at a school in Lincolnshire in 2008. He was then suspended following allegations about his conduct and was eventually dismissed in 2010. Mr Wolff subsequently brought a claim for unfair dismissal which was successful. Following a remedy hearing in early 2012, the Employment Tribunal found that although reinstating Mr Wolff to his old job was not practical, it was possible to re-engage Mr Wolff at a different school, in Surrey.Oasis appealed the decision on the basis that the relationship between itself and Mr Wolff was irreparably damaged. In particular, Mr Wolff had made various allegations against members of the Oasis staff, including allegations that they had fabricated and supressed evidence. Oasis submitted that the difficulties in the relationship were therefore insurmountable and that re-engagement would not work.The Employment Appeal Tribunal held that the Tribunal were correct in their approach and that the re-engagement order ought to be made. It held that Mr Wolff was “willing and able to start a new page” at his new school and that although the Order itself had contained a clause requiring Mr Wolff to withdraw existing complaints and to agree not to pursue any further complaints relating to the matters which led to the Tribunal claim, this was merely an expression of good intentions and not an admission that Mr Wolff had failed to put the matter behind him. Although he was working with the same employer and he would have to deal with the same HR Department, he would not have to work with the same individuals with whom he had had difficulties in the past. It was therefore held that the allegations he had previously made would not necessarily impact on the relationship he would have with different colleagues and managers at a different workplace, and therefore it was practicable for the re-engagement to go ahead.Although the general rule is that where there has been a particularly contentious dispute between parties, it will not normally be practicable for the employee in question to be reinstated or re-engaged, the important issue here is that Mr Wolff would be starting afresh at a different workplace with different colleagues and therefore he should have been given the opportunity of a fresh start.

For advice on this or any aspect of Employment Law, please contact our Employment team.