A recent case has clarified that, when considering whether to order re-engagement following a successful unfair dismissal claim, a tribunal does not need to determine whether an employee caused or contributed to their dismissal unless such a finding is made at the liability stage or raised during remedy considerations.
What is re-engagement?
An employment tribunal (ET) has the power to make an order for reinstatement or re-engagement if it upholds a claim of unfair dismissal. A claimant who is re-engaged returns to a suitable role similar to the one they held before they were unfairly dismissed, as opposed to returning to a role they previously occupied (reinstatement).
The legislation requires that a tribunal consider the following when deciding whether to order
re-engagement:
- any wish expressed by the employee;
- whether it is feasible for the employer (or a successor or an associated employer) to comply with the order to be determined at the date of making the order; and
- whether it would be fair to mandate the re-engagement where the employee played a role in their dismissal and on what terms.
While reinstatement or re-engagement orders are not common, they can be an attractive remedy for claimants, particularly in a difficult job market.
British Council v. Sellers
In this recent case, a British Embassy employee made complaints of sexual misconduct by Mr Sellers, which led to an investigation and disciplinary hearing, and Mr Sellers’ subsequent dismissal for gross misconduct. Mr Sellers brought a claim for unfair dismissal after the British Council rejected his appeal. The ET upheld the claim and found that internal decision-makers had failed to conduct a reasonable investigation and appeal process. Following the ET’s decision, the Council instructed an external investigator who concluded that the Council should uphold its gross misconduct finding.
At the subsequent remedy hearing, Mr Sellers asked the ET to order the Council to re-engage him but the Council objected, citing concerns about his conduct that the external investigation had further highlighted. However, the Council did not argue that Mr Sellers had caused or contributed to his dismissal. Instead, it argued that the finding of the external investigation meant that it was not feasible for it to re-engage Mr Sellers. The Council also raised concerns about Mr Sellers’ conduct after his dismissal, in relation to vacating his Council-owned apartment and returning artworks. The ET dismissed the Council’s objections and ordered it to re-engage Mr Sellers. The ET believed that it had to determine the question of contributory conduct, even though the Council had not raised it, and found the alleged sexual misconduct did not happen on the balance of probabilities.
On appeal, the Employment Appeal Tribunal (EAT) set aside the re-engagement order. It found that the ET was not required to decide whether Mr Sellers had caused or contributed to his dismissal, because the Council had not alleged contributory fault on Mr Sellers’ part. The EAT also found that the ET had not assessed the practicability of re-engagement in the right way, which involves considering it from the employer’s perspective. The ET should not have considered the reasonableness of the investigation. Instead, it should have considered whether the Council had a genuine and rational belief in Mr Sellers’ misconduct, which led to a loss of trust and confidence. The EAT held that the ET was entitled to find that the post-dismissal issues in relation to the apartment and artworks had not fundamentally destroyed trust and confidence. In the end, that was not relevant, given the EAT accepted that the Council had a genuine and rational belief that Mr Sellers had engaged in conduct which had destroyed the Council’s trust and confidence in him.
Key takeaways
This case serves as a useful reminder of how tribunals should approach requests for re-engagement. It highlights the importance of understanding when a tribunal must consider contributory conduct, which is only necessary if it makes such a finding during the liability stage, or the employer raises it at a remedy hearing. Whilst, in this case, the ET and EAT found that the claimant’s post-dismissal conduct was not relevant to the practicability of re-engagement, in other cases it might be, although much will depend on the specific circumstances.
When defending an unfair dismissal claim, it is important you prepare to respond to re-engagement or reinstatement requests, particularly in terms of leading evidence of behaviour that you feel has destroyed the necessary employee/employer relationship of trust and confidence and allegations of contributory fault.
