Employers are familiar with the idea that if they lose an unfair dismissal claim that compensation may be awarded to the ex-employee.

What is less well known is that the Tribunal has the power to order reinstatement back to their previous role or re-engagement with the employer. Given that there is usually a breakdown in the working relationship following a dismissal, such an order can be very problematic and difficult for an employer.

Traditionally, when considering an order to reinstate or re-engage, the Tribunal has to consider:

  • any wishes expressed by the employee (it would not be ordered otherwise);
  • whether it is practicable for the employer;
  • whether the employee caused or contributed to their dismissal; and if so,
  • whether it would be just in the circumstances to make such an order.

A recent Employment Appeal Tribunal (EAT) case, Kelly v PGA European Tour, has given some comfort to employers facing such an order. In that case, the employer believed there to be a breakdown in trust and confidence due in part to evidence that arose suggesting the Claimant covertly recording meetings. The EAT confirmed it was not just matters which were known to the employer when dismissing, but that all the evidence was relevant to whether an order to re-engage should be made.

An employer’s reasonable/rational belief (and this will be the subject to the scrutiny of the Tribunal or the EAT) that trust and confidence in the working relationship has broken down should lead to a Tribunal refusing to order reinstatement or re-engagement.

Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.

Motor Industry Legal Services

Motor Industry Legal Services provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.