Labour Research (November 2012)

Law Queries


Q. We are supporting our member in taking her unfair dismissal claim to an employment tribunal. One question that has arisen is what the outcome might be if her claim is successful. She recognises that the compensation that tribunals typically award is derisory and is therefore primarily interested in returning to work with the employer. What are the factors we should bear in mind?

A. Re-instatement, under section 114 of Employment Rights Act 1996 (ERA), is where the tribunal orders the employer to give the individual their job back.

Re-engagement, under section 115 of ERA, is where the tribunal orders the employer to give the individual a new job. Where the tribunal is persuaded to make an order for re-engagement, it will be able to order the employer to hire your member on terms that it considers just.

Sadly, orders for either re-instatement or re-engagement are rare. But they are attractive in many respects. For example, if re-instatement or re-engagement is ordered, your member will be entitled to full compensation for all her lost earnings from the date of dismissal to the date of re-employment, as the statutory cap does not apply in this situation.

In the event that the employer fails to comply with an order for re-employment, your member will be entitled to additional compensation, unless the employer can demonstrate that it was not practicable to comply with the order.

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