Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
No reinstatement ordered when sought by the claimant as it could not be carried into effect with success due to the relationship breaking down with management staff in the respondent.
The claimant brought constructive dismissal and disability discrimination claim against the respondent. The Tribunal found in the claimant’s favour and awarded a basic award and a compensatory award. The claimant sought to bring an appeal here based upon the remedy.
Claimant: Danny Duployen
Respondent: Whyte & Mackay Limited
Keywords: Unfair Dismissal; Reinstatement
The claimant appealed stating that the Tribunal erred in not ordering reinstatement or re-engagement. He also further appealed citing that there should have been interest added to his awards for injury to feelings and financial loss for discrimination.
The Tribunal had decided that reinstatement should not be awarded as the relationship had broken down between the parties. The claimant argued that the Tribunal should have had to determine whether it was ‘possible’ for reinstatement rather than whether it was just ‘reasonable’. The EAT held that what is considered ‘reasonably practicable’, which is required in law, is a question of fact. To this end, it is whether it can be carried into effect with success which is different than being merely possible. Accordingly, the EAT held that the claimant’s argument that it should be based on what is ‘possible’ is misconceived.
On the claim relating to interest – it was conceded by the respondent that the Tribunal should have made an award of interest from the mid-point between the first discriminatory act and the date of the judgment. The claimant agreed with this and the EAT awarded such.
The issue of reinstatement can be a thorny one considering that such cases usually come when a relationship has either broken down or is, at best, strained. This is especially interesting here considering that it was a constructive dismissal case yet the claimant sought reinstatement. However, the EAT set out the law where reasonably practicable was interpreted as it being carried into effect with success. Considering that the claimant had a strained relationship with managers where he felt they thought he was useless and a nuisance it meant that reinstatement could not be ordered as per the judgment of the EAT.
Continue reading
We help hundreds of people like you understand how the latest changes in employment law impact your business.
Please log in to view the full article.
What you'll get:
- Help understand the ramifications of each important case from NI, GB and Europe
- Ensure your organisation's policies and procedures are fully compliant with NI law
- 24/7 access to all the content in the Legal Island Vault for research case law and HR issues
- Receive free preliminary advice on workplace issues from the employment team
Already a subscriber? Log in now or start a free trial
