Post Termination Issues: What do employers need to consider?
Chris Dobbs looks at post termination issues, obligations and restrictions.
What is re-engagement?
If an employee wins their unfair dismissal claim, a tribunal can order compensation. They also have the power to order reinstatement (to the old job) or re-engagement (to a comparable job).
Can an employee force an employer to reengage them?
A tribunal might not make such an order if it is not 'practicable', for example if the relationship between employer and employee has broken down completely. But what happens when a tribunal orders re-engagement but the employer refuses - can the employee force the employer to reengage them?
McKenzie v University of Cambridge
The Court of Appeal looked at this issue recently in McKenzie v University of Cambridge. The employee was a law lecturer. She was unfairly dismissed and sought re-engagement, which the tribunal ordered. The employer refused and paid her compensation instead. The employee brought a claim in the High Court, asking them to force the employer to reengage her. The matter ended up in the Court of Appeal.
The Court of Appeal said that the employee had no right to ask the High Court to force the employer to reengage her. Unfair dismissal claims must be dealt with exclusively in the employment tribunal, not other courts.
Additional award of between 26 and 52 weeks’ pay
It was not possible to force an employer to reengage an employee anyway. If an order for re-engagement (or reinstatement) is made, but the employer refuses, the remedy is an 'additional award' of between 26 and 52 weeks' pay. The University had already paid the employee that sum, without any need for her to return to the tribunal to enforce that. The matter was therefore closed.
Additional award replaces normal compensation
This judgment is good news for employers who are ordered to reinstate or reengage a potentially troublesome employee. An employee cannot insist on that happening, but it might cost the employer extra money. It's worth noting that the additional award replaces the normal compensation for unfair dismissal, so the employee does not benefit from double recovery.
Paul Burton, Head of the Employment Team says “This judgement is reassuring. While the compensation level is high, forced re-engagement of an employee could prove extremely disruptive to an organisation.”
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and the Employment team will be happy to discuss it with you.
