One of the remedies available for unfair dismissal is an order for reinstatement or reengagement. Reinstatement means returning the employee to his or her original job. Reengagement means giving the dismissed employee a suitable new job with the same organisation. These orders are seldom used, partly because an unfairly dismissed employee will not usually want to return to an employer who treated them unreasonably. Another important factor is that reinstatement or reengagement orders will only be made if the tribunal considers that it would be practicable for the employer to comply with them. Where there has been a breakdown in trust and confidence – or where the employer clearly does not have the resources to take the employee back – then the Tribunal is unlikely to make an order and will award compensation instead.
In the case of Dafiahghor-Olomu v Community Integrated Care the employee was a Nigerian national who required a permit to work in the UK. This meant that when she was unfairly dismissed it was particularly important for her to return to employment for which such a permit was available and so she sought reengagement. The tribunal declined to make an order because by the time of the remedy hearing the employer had ceased to operate in Scotland – where she lived and where she had been based – having lost the contract under which she was employed to a competitor. On appeal, the EAT held that this was the wrong approach. The employer had a national presence covering both England and Wales with thousands of employees. While it was clear that her original post was no longer available – so that an order for reinstatement would not be appropriate – there was still the possibility of ordering the employee to be reengaged elsewhere. The Tribunal had assumed that this would not have been practicable because it would have required the employee to relocate. But this failed to take into account the fact that the employee was perfectly willing to do so if a suitable role was made available. Had the order been made, the issue of whether a suitable vacancy actually existed could have been explored and the employer would have had a further opportunity to argue that reengagement was not practicable if it emerged that the nothing suitable was available. The matter was sent back to the Tribunal to be reconsidered.
As an alternative, the employee had argued that a reengagement order could have been made against the company that won the Scottish contract from her employer. She relied on the fact that the legislation allowed an order to be made against the original employer or its ‘successor’. The EAT agreed with the tribunal, however, that this provision had a very narrow scope which would only cover a company which had actually assumed ownership of the employer’s business. While the loss of the contract to the rival contractor would have been a TUPE transfer, this did not affect the employee because she was no longer employed by the time the transfer took place. The subsequent contractor did not therefore have any liability in relation to her dismissal and could not be the subject of an order for reinstatement or reengagement