Unfair Dismissal Remedies: Reinstatement And Reengagement
The legal remedies available to an unfairly dismissed employee for the loss suffered are Reinstatement, Reengagement, or Compensation. Whereas Compensation concerns indemnifying the dismissed employee financially for the loss suffered, both Reinstatement and Reengagement involve the employer re-employing the employee in some capacity.
Reinstatement concerns re-employment back into the same role that the employee was dismissed from. Thus, its intended effect is to place the employee back in the position that he or she would be in if the unlawful dismissal had never occurred. Similarly, Reengagement concerns re-employment into another role, on terms and conditions that are as close as is reasonably practicable to those of the original role.
UK law regards Reinstatement as the primary remedy for unfair dismissal. The reason is because it restitutes both the economic and the psychological benefits that the employee perceived in his role, such as salary and self-esteem. Financial compensation may not be as effective in remedying the various aspects of the loss suffered. If Reinstatement is not possible in the specific circumstances, then UK law regards Reengagement as the next-best remedy.
Although Reinstatement and Reengagement are society's primary remedies for Unfair Dismissal, an Employment Tribunal cannot consider them without the employee's explicit permission. The reason is because the employee may not wish to return to the employer after all that may have happened. Therefore, it must ask the employee whether or not he wishes to be reinstated or reengaged. The alternative for the employee is to proceed to the remedy of Compensation.
If the employee expresses a wish to be reinstated or reengaged, then that does not automatically entitle him to be so, but brings the remedies into play and empowers the Employment Tribunal to consider them formally. The Employment Tribunal has complete discretion as to whether or not to grant the remedies. In making its decision, the Tribunal will take into account whether re-employment is practicable in the circumstances and, where the employee was partly to blame for the dismissal, whether ordering the employer to take the employee back would be just.
In reality, unfairly dismissed employees rarely opt to be reinstated or reengaged. The reason is because the vexatious nature of the litigation process usually leaves the relationship between the employee and the employer so badly damaged that for them to be able work together again is not possible. Likewise, Employment Tribunals rarely order Reinstatement or Reengagement for the same reason. Only on very rare occasions do Tribunals conclude that the relationship remains workable.
Although the Tribunal may order Reinstatement or Reengagement, it has no power to enforce the order. Consequently, the employer has the option to refuse to take the employee back. However, the employer's refusal to comply with the Tribunal's order without good cause will entail a penalty in the form of increased compensation. Whether the employer's reasons be satisfactory or not, the Tribunal will have no choice but to move on to consider awarding compensation.
From a tactical perspective, for the employee to request Reinstatement or Reengagement may be a potentially beneficial step, because the employer's failure to comply will entitle the employee to a higher level of financial compensation. Specifically, it will entitle the employee to be compensated in full for his loss of earnings from the date of the dismissal to the date of the Remedy Hearing. Otherwise, that portion of the loss suffered may be subject to a statutory limit. Therefore, if the employee's losses to the date of the Hearing exceed the statutory limit, then Reinstatement or Reengagement may be worth considering seriously. Furthermore, employers generally detest re-employing dismissed employees so much that a credible application for Reinstatement or Reengagement may lead to increased offers of a private financial settlement from the employer. However, if the employer complies with the order for Reinstatement or Reengagement, then the employee will be expected to comply too and return to work.
Reinstatement concerns re-employment back into the same role that the employee was dismissed from. Thus, its intended effect is to place the employee back in the position that he or she would be in if the unlawful dismissal had never occurred. Similarly, Reengagement concerns re-employment into another role, on terms and conditions that are as close as is reasonably practicable to those of the original role.
UK law regards Reinstatement as the primary remedy for unfair dismissal. The reason is because it restitutes both the economic and the psychological benefits that the employee perceived in his role, such as salary and self-esteem. Financial compensation may not be as effective in remedying the various aspects of the loss suffered. If Reinstatement is not possible in the specific circumstances, then UK law regards Reengagement as the next-best remedy.
Although Reinstatement and Reengagement are society's primary remedies for Unfair Dismissal, an Employment Tribunal cannot consider them without the employee's explicit permission. The reason is because the employee may not wish to return to the employer after all that may have happened. Therefore, it must ask the employee whether or not he wishes to be reinstated or reengaged. The alternative for the employee is to proceed to the remedy of Compensation.
If the employee expresses a wish to be reinstated or reengaged, then that does not automatically entitle him to be so, but brings the remedies into play and empowers the Employment Tribunal to consider them formally. The Employment Tribunal has complete discretion as to whether or not to grant the remedies. In making its decision, the Tribunal will take into account whether re-employment is practicable in the circumstances and, where the employee was partly to blame for the dismissal, whether ordering the employer to take the employee back would be just.
In reality, unfairly dismissed employees rarely opt to be reinstated or reengaged. The reason is because the vexatious nature of the litigation process usually leaves the relationship between the employee and the employer so badly damaged that for them to be able work together again is not possible. Likewise, Employment Tribunals rarely order Reinstatement or Reengagement for the same reason. Only on very rare occasions do Tribunals conclude that the relationship remains workable.
Although the Tribunal may order Reinstatement or Reengagement, it has no power to enforce the order. Consequently, the employer has the option to refuse to take the employee back. However, the employer's refusal to comply with the Tribunal's order without good cause will entail a penalty in the form of increased compensation. Whether the employer's reasons be satisfactory or not, the Tribunal will have no choice but to move on to consider awarding compensation.
From a tactical perspective, for the employee to request Reinstatement or Reengagement may be a potentially beneficial step, because the employer's failure to comply will entitle the employee to a higher level of financial compensation. Specifically, it will entitle the employee to be compensated in full for his loss of earnings from the date of the dismissal to the date of the Remedy Hearing. Otherwise, that portion of the loss suffered may be subject to a statutory limit. Therefore, if the employee's losses to the date of the Hearing exceed the statutory limit, then Reinstatement or Reengagement may be worth considering seriously. Furthermore, employers generally detest re-employing dismissed employees so much that a credible application for Reinstatement or Reengagement may lead to increased offers of a private financial settlement from the employer. However, if the employer complies with the order for Reinstatement or Reengagement, then the employee will be expected to comply too and return to work.
Source...