Under Article 77A of the Employment (Jersey) Law 2003 where the Employment Tribunal finds that an employee was unfairly dismissed, it has the power to award compensation. However, less commonly known is that it also has the power to order reinstatement or re-engagement of the employee.
The key differences between reinstatement and re-engagement is that the former requires the employer to treat the employee in all respects as if the dismissal had not taken place, where the latter requires the employer to engage the employee in employment comparable to that from which the dismissal took place or other suitable employment.
Both types of re-employment enable an employee to receive a payment from the employer equal to any amount or benefit that the applicant might reasonably be expected to have received but for the dismissal (excluding arrears of pay), during the period between the effective date of termination and the date of the subsequent re-employment. Some commentators consider this approach to be restrictive.
Aside from the inability to recover any salary, a further possible reason why re-instatement and re-engagement do not feature more prominently in Tribunal's decisions is a consequence of the rigmarole associated with Tribunal proceedings. The relationship of trust and confidence between the employer and employee is inevitably put under significant pressure and it may be mutually agreed that a parting of ways is the most appropriate outcome.
However, in a recent case, Mr Philip Graham v Geomarine Limited, Mr Graham was successful in claiming unfair dismissal against his employer but wished to either be reinstated or re-engaged rather than receive compensation. For the first time it was therefore necessary for the Tribunal to consider what criteria it should consider when faced with such a request by an unfairly dismissed employee.
The Tribunal found that it would be impractical to reinstate Mr Graham due to the long period of time that had elapsed since his dismissal (over a year), although the Tribunal was prepared to consider Mr Graham for re-engagement with Geomarine Limited or one of its associated companies.
Article 77(D)(4) of the law provides for three factors that need to be taken into account when asked to make such a direction:
- Any wish expressed by the complainant as to the nature of the direction to be made;
- Whether it is practicable for the employer or a successor of the employer or an associated employer to comply with a direction for re-engagement;
- Where the complainant caused or contributed to some extent to the dismissal, whether it would be just to direct that person's re-engagement and (if so) on what terms.
The Tribunal noted that Mr Graham clearly wished to be re-engaged and had not caused or contributed to his dismissal, leaving (b) to be decided upon. Unfortunately for Mr Graham the Tribunal held after considering English case law, inter alia, the following:
- "It is clear that Geomarine Limited has lost trust and confidence in Mr Graham as an employee..."
- "The Tribunal have also noted that Mr Graham's job at Geomarine Limited was not filled following his dismissal, and in fact a further two foreman have since left that company."
- "The Tribunal is mindful that whilst Mr Graham has been unfairly dismissed, other people are still reliant upon these companies for their livelihood and neither of them are hiring a senior weekly paid work force at this time."
Accordingly, the Tribunal decided that it would not be practicable for Geomarine Limited, or any of its associated companies to comply with an order for the re-employment of Mr Graham at this time.
This case may serve to demonstrate the difficulties an employee will face when seeking a direction for re-employment. Understandably, the Tribunal will not direct re-employment when it is not appropriate to do so and a number of criteria must therefore be satisfied.
The first criteria, in particular, has been known to trip up Applicants. In a case where this firm acted for a Respondent company, the Applicant sought re-employment, but the Tribunal decided that this was not appropriate on the basis that relationship between the Applicant and the Respondent "must be severely damaged, if not destroyed."
An aggrieved employee may consider appealing the decision of the Tribunal not to direct re-employment, however, it is recommended that specific legal advice be sought in relation to this. A stern English warning has been given (which the Jersey Tribunal may find persuasive) that where the Tribunal directs itself correctly on the law and hears and accepts evidence as to impracticability [of re-employment] and then sets out its reasoning clearly and fully, as it does here, the plea becomes virtually impossible.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.