Reinstatement Order Submissions

Reinstatement Order

When deciding whether to order reinstatement or re-engagement, an Employment Tribunal will carefully consider several factors to determine if such an order is appropriate and practical. These factors are outlined in the Employment Rights Act 1996 and case law. Below are the key considerations:

1. Employee's Wishes

• The tribunal will first consider whether the employee wants to be reinstated or re-engaged.

• If the employee does not wish to return to work for the employer, the tribunal will not order reinstatement or re-engagement.

2. Feasibility for the Employer

• The tribunal will assess whether it is practicable for the employer to comply with the order.

• Factors include:

  • Whether the employee’s role still exists.

  • Whether the employer has the capacity to reinstate or re-engage the employee.

  • Whether the business has undergone significant changes (e.g., restructuring, redundancy) that make reinstatement impractical.

3. Conduct of the Employee

• The tribunal will consider whether the employee’s conduct before or after the dismissal makes reinstatement or re-engagement inappropriate.

• For example:

  • If the employee engaged in misconduct (even if not sufficient to justify dismissal).

  • If the employee has acted in a way that undermines the trust and confidence required for the employment relationship.

4. Conduct of the Employer

• The tribunal will consider the employer’s behavior, including:

  • Whether the employer acted fairly and reasonably during the dismissal process.

  • Whether the employer has shown a willingness to resolve the dispute or has acted in bad faith.

5. Impact on the Employer’s Business

• The tribunal will assess whether reinstatement or re-engagement would cause undue disruption to the employer’s business.

• For example:

  • If reinstating the employee would require displacing another employee.

  • If the employer has already hired a replacement and reinstatement would create operational difficulties.

6. Trust and Confidence Between the Parties

• The tribunal will consider whether the employment relationship can be restored without further conflict.

• If the relationship has broken down irreparably, the tribunal is unlikely to order reinstatement or re-engagement.

7. Re-engagement Options

• If reinstatement is not feasible, the tribunal may consider whether re-engagement (offering the employee a similar role) is possible.

• The tribunal will assess:

  • Whether a suitable alternative role is available.

  • Whether the employee is willing to accept a different role.

8. Equity and Substantial Merit of the Case

• The tribunal will consider the overall fairness of the situation, including:

  • The employee’s length of service and contribution to the business.

  • The impact of the dismissal on the employee’s career and livelihood.

9. Compliance with Previous Orders

• If the employer has previously failed to comply with tribunal orders, this may influence the tribunal’s decision.

Practical Considerations

• Reinstatement and re-engagement are relatively rare remedies, as tribunals often find that the employment relationship has broken down or that it is impractical for the employer to comply.

• In most cases, tribunals award compensation instead of reinstatement or re-engagement.

What Happens if the Employer Refuses to Comply?

• If the employer refuses to comply with a reinstatement or re-engagement order, the tribunal can:

  • Award additional compensation (up to a maximum of 52 weeks’ pay, subject to statutory limits).

  • Make a declaration that the employer failed to comply with the order.

Seeking Legal Advice

• Given the complexity of these factors, it is advisable to seek legal advice if you are seeking reinstatement or re-engagement. Our employment advisors can help you build a strong case and navigate the tribunal process. You can also contact ACAS or Citizens Advice for free guidance.

Getting the Reinstatement order

You will be told by solicitors that the likelihood of getting a reinstatement order is less than one percent. In the Employment Tribunal, where we represented a claimant, the claimant was given a reinstatement order against Royal Borough of Kensington and Chelsea Council and was paid £85,000 for an unfair redundancy dismissal. We were able to get a reinstatement order and therefore, it is feasible. Read the winning skeleton argument.