The Employment Rights’ Act (ERA) 2012, brought the advent of new remedies for persons who have been deemed by the tribunal to have been unfairly terminated by their employer.
Prior to the proclamation of the act, damages were the only remedy one could receive, however we now have the additions to the remedy landscape of reinstatement and reengagement.
These concepts can be confusing to some and very daunting to the employer who is required to comply with orders from the tribunal.
This article will outline the differences between the two remedies and considerations for the Employment Rights Tribunal (ERT) on whether they will give an order for reinstatement or reengagement.
Reinstatement says the employer shall treat the complainant in all respects as if he/she had not been dismissed.
The complainant will be entitled to the pay and benefits that he or she would have received, but for the dismissal, together with any rights and privileges, including seniority and pension rights.
The complainant must be restored to his/her original job and receive retroactive pay from the date of dismissal.
As per the ERA, before making an order for reinstatement or reengagement, the tribunal shall take into account: whether the employee wishes to be reinstated or, in the case of reengagement, any wish expressed by the employee as to the nature of the order to be made; whether it is practicable for the employer or his successor, to comply with an order for reinstatement or reengagement as the case may be and; where the employee caused or contributed to some extent to the dismissal, whether it would be just to order for his reinstatement or reengagement, as the case may be, and if the latter, on what terms.
In most cases, the tribunal will first consider reinstatement, and if that is not possible, reengagement.
Some of the reasons reinstatement is not a viable option include: instances where the business is no longer conducted, the former employee is incapacitated because of injury or illness, there has been a loss of trust and confidence, such that it would not be feasible to reestablish the employment relationship.
It is important to note that the onus of proof is on the party claiming loss of trust and confidence.
Reengagement is an order made by the tribunal 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 or she was dismissed, or other suitable employment.
The ERA also stipulates the terms of a decision of reengagement, including: the identity of the employer; the nature of the employment, the remuneration for the employment; 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 reengagement; any rights and privileges, including seniority and pension rights, which must be restored to the employee and; the date by which there must be compliance with the order.
There are several similarities between the remedies of reengagement and reinstatement, and it is easy to get the two confused.
However, the major difference is that reinstatement gives back the employee their original job, while reengagement gives them a different but comparable job.
Further, reengagement is always the second option, and is only considered if it is determined that reinstatement is not a viable remedy.
It is also important to remember that the remedy of damages still exists, and in instances where neither reinstatement nor reengagement is feasible, damages can still be used as a means of remedy for an unfairly dismissed employee.
Siobhan Robinson-Morris, industrial relations/human resources consultant.
