In August 2018 the claimant won their unfair dismissal claim against the respondent and received an order from the Tribunal for re-engagement.  This was to be implemented by 21st September 2018.  The order also included the respondent to pay the claimant in respect of any benefit they would have expected to receive but for the dismissal taking place.

A remedy hearing was held on foot of the failure by the Respondent to re-engage the claimant and he was awarded £950,000.  The claimant then sought interest upon that award.  This was refused by the Tribunal at first instance on the basis that a re-engagement order under Section 115 of the Employment Rights Act 1996 (Article 149 of the Employment Rights (NI) Order 1996) was not an order that required the sum of money to be paid and therefore did not attract interest.

The relevant legislation for the payment of interest was the Employment Tribunals (Interest) Order 1990 (Industrial Tribunal (Interest) Order (NI) 1990 in Northern Ireland) and Article 3 required for it to be a ‘relevant decision’ as there was no requirement to pay money within Section 115 of the 1996 Act.

This decision was appealed to the EAT and there was reference to R (MacKenzie) v University of Cambridge [2019] which stated that if re-engagement was not awarded then the respondent would have to pay the sum within Section 115(3) (Article 149(3) in NI).   It was further held by the EAT that Article 2(2)(b) of the 1990 Order required that the figure had to be ascertainable and that this applied to the amounts of money that were specified in an award by the Tribunal or a sum that is found with reference to the terms of an order by the Tribunal.    This may have allowed some interest to be awarded looking solely at the issue of whether a figure was ‘ascertainable.  However, the EAT held that the 1990 Order had no applicability as it did not cover the payments that would be made on foot of an order of re-engagement.

Practical Lessons

This decision focused on the issue of whether interest is payable upon an award with reference to the Employment Tribunals (Interest) Order 1990 (the NI equivalent being the Industrial Tribunal (Interest) Order (NI) 1990).  It was held that for an award to qualify for an award of interest it must be a ‘relevant decision’ which requires the payment of an amount.  In this case, there was no such order considering that re-engagement was made which was then not a relevant decision for interest.

The interest could then not be seen to accrue from the original decision but only when the actual award was made by the Tribunal in the fresh hearing.  This must be borne in mind when there have been orders for re-engagement that have then not been followed by the respondents.
https://assets.publishing.service.gov.uk/media/5eac1ea5d3bf7f6534faf0e7/Mr_D_Fortheringhame_v_Barclays_Services_Ltd_UKEAT_0208_19_BA.pdf