The recent case of The British Council and Mr P Sellers highlights the impracticality of re-engagement as a remedy to a successful unfair dismissal claim.
The recent Employment Appeal Tribunal (EAT) case, The British Council and Mr P Sellers, explored the uncommon unfair dismissal remedy of re-engagement. In this instance, the EAT overturned the Employment Tribunal's (ET) decision that the claimant should be re-engaged with his employer.
The right of an employee not to be unfairly dismissed by their employer is well known and provided for by the Employment Rights Act 1996 (ERA). If a claim for unfair dismissal is successful, the remedies open to the ET are compensation, reinstatement, or re-engagement. Before discussing the facts and outcome of The British Council and Mr P Sellers, it is important to understand what each of these remedies entail.
Compensation
Unsurprisingly, the most common remedy is compensation.
For many claimants and employers, the circumstances leading up to litigation and the process of attending the tribunal itself can result in an irreparable breakdown of their relationship. This breakdown often means the employee no longer wishes to return to the workplace, or the specific circumstances mean it would not be suitable for them to do so, and compensation therefore becomes the most appropriate remedy.
Compensation in an unfair dismissal case is made up of a basic award calculated in the same way as a statutory redundancy payment, as well as a compensatory award of up to either 52 weeks' pay or (currently) £115,115, whichever is lower. The compensatory award can be reduced for a variety of reasons, such as:
- the claimant's failure to mitigate their loss;
- the claimant's contributory fault; or
- that even if a proper procedure had been followed, the claimant would have been fairly dismissed regardless.
Reinstatement
A reinstatement order under section 114 of the ERA is “an order that the employer shall treat the complainant in all respects as if he had not been dismissed”. In other words, the employee's role with the employer will be reinstated on the same pay and conditions that they previously enjoyed, and as if they had not left.
Moreover, reinstatement also provides that should the employee have benefited from an improvement to their terms and conditions had they not been dismissed, then they must be treated as if they had received said improvement. In other words, had the employee been due a raise, increased holiday entitlement, or any other similar ‘perk', they will come back to work as though nothing had changed and the improvement will be applied to them.
Re-engagement
A re-engagement order is similar to reinstatement, but with some key differences.
Section 115 of the ERA provides that “the complainant be engaged by the employer, or by a successor of the employer or by an associated employer, in employment comparable to that from which he was dismissed or other suitable employment”.
In this instance the claimant is not necessarily stepping into their role as if they had never left, rather returning to a role similar to what they held before the unfair dismissal. However, like reinstatement, a re-engagement order will usually require the employer to reimburse the employee for any lost pay or benefits from the date of dismissal.
The British Council and Mr P Sellers case
Turning to The British Council and Mr P Sellers case, the initial ET judgment ordered that the claimant should be re-engaged with his employer. The EAT overturned that decision in a judgment published on 3 January 2025, a little over three years after the claim was originally heard by the Tribunal in November 2021.
When considering whether to grant an order for re-engagement, the tribunal takes into account the following three key points:
- any wish expressed by the complainant as to the nature of the order to be made;
- whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement; and
- where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms.
In this case, Mr P Sellers, the claimant, had been employed by the Respondent, The British Council (a non-departmental public body for “cultural relations and educational opportunities”), since 1990. Mr P Sellers was employed in the senior role of country director. After a social gathering, “ZZ” (an employee of the British Embassy who attended the gathering) complained that Mr P Sellers had acted towards her in a sexually inappropriate manner.
Consequently, Mr P Sellers was dismissed for gross misconduct following an investigation and a disciplinary hearing. After unsuccessfully appealing the decision, Mr P Sellers brought a claim for unfair dismissal. The ET found that the Respondent's decision was flawed as it stemmed from an inadequate investigation. As a result, the claim of unfair dismissal was upheld by the ET and re-engagement was ordered. Reinstatement was not ordered because the Claimant's senior role had already been filled.
Given the nature of the complaints against Mr P Sellers, the EAT found that the Tribunal had not considered whether re-engagement of Mr P Sellers would be practicable from the Respondent's perspective (ie. not simply possible, but able to be successful), where an independent investigation had been carried out but instead judged the reasonableness of the investigations, which was incorrect. As a result, the EAT found that the Tribunal acted perversely and set aside the order for re-engagement accordingly.
This case makes for an interesting discussion not only because orders for re-engagement are few and far between, but also because it illustrates that a Tribunal should not substitute its own view for that of an external investigator, rather than considering whether the Respondent's belief was a rational one. In this case, it was considered by the EAT that the order for re-engagement should be set aside.
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.
