In last week’s article I looked at the basic compensatory award that a tribunal may make under the Employment Rights Act, 2012.
However, when one reads the legislation it seems to suggest that reinstatement or re-engagement, where applicable, are intended to be the primary remedies.
There is a similar emphasis in the English employment rights legislation on reinstatement. Nevertheless, the reality is that in only a small fraction of cases will reinstatement be ordered.
One of the reasons advanced for this disconnect between the statutory provisions and the practical reality is that in English law contracts of employment traditionally fall into the category of those which are not specifically enforceable. The attempt to import the concept of reinstatement is therefore seen as going against the historical grain.
Of course, there is often the real difficulty of compelling an unwilling employer to keep an employee in circumstances where the employment relationship has totally broken down.
It is not only in Britain that there has been a tendency to order reinstatement in a small number of cases, but in other traditional common jurisdictions where unfair dismissal legislation has been introduced, such as Australia, the same trend has been found.
Sections 33 to 35 of the act deal with the remedies of reinstatement and
re-engagement. Section 34(1) explains the order of reinstatement.
It reads: “For the purposes of this act, an order for reinstatement is an order that an employer treat an employee in all respects as if he had not been dismissed.”
An order of re-engagement is described in Section 35, which provides: “For the purposes of this act, an order for the re-engagement of an employee is an order, in such terms as the tribunal may determine, that the employee be engaged by the employer, or by a successor of the employer, in employment comparable to that from which the employee was dismissed or in other suitable employment.”
Section 34(2) of the act sets out the duty of the tribunal on making an order for reinstatement.
It provides: “On making an order for the reinstatement of an employee the tribunal shall specify:
(a) an amount payable by the employer in respect of any benefit which the employee might reasonably expected to have had but for the dismissal (including arrears of wages) for the period from the date of termination of employment to the date of reinstatement;
(b) any rights and privileges, including seniority and pension rights, which must be restored to the employee; and
(c) the date by which there must be compliance with the order.”
Section 35(2) lays down similar provision, with respect to re-engagement:
“On making an order for the re-engagement of an employee the tribunal shall specify the terms on which the re-engagement shall take place, including
(a) the identity of the employer;
(b) the nature of the employment;
(c) the remuneration for the employment;
(d) any amount payable by the employer in respect of any benefit which the employee might reasonably be expected to have had but for the dismissal (including arrears of wages) for the period from the date of termination of employment to the date of re-engagement;
(e) any rights and privileges, including seniority and pension rights, which must be restored to the employee; and
(f) the date by which there must be compliance with the order.”
Claims under the act are required to be filed within three months of termination.
Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to cnmcc@caribsurf.com.
