This judgment came on foot of a finding from the Industrial Tribunal that the claimant had been automatically unfairly dismissed.  The claimant sought reinstatement and the Tribunal had to determine whether that should be awarded.

Article 150 of the Employment Rights (NI) Order 1996 states that the Tribunal has discretion in ordering reinstatement and that the claimant’s wishes should be considered as well as whether it is practicable for the employer to comply with an order for reinstatement.  The Article also requires that the Tribunal considers whether the claimant caused or contributed to their dismissal and whether it would be just to order reinstatement.   The claimant made it clear that she only wanted to be reinstated and did not put forward evidence of any alternative post that would have interested her.

In considering an order for reinstatement, the Tribunal noted that the practicability of such an order must be considered at the time of the remedy hearing and not some earlier time.   Furthermore, impracticability does not merely arise by virtue of bad-feeling between the parties as it is inevitable that there will be entrenched positions between the parties after having a Tribunal hearing and a finding of unfair dismissal.

The Tribunal outlined the lack of value to the evidence given at the remedy hearing.  They stated that no clear evidence had been directed to the statutory test for reinstatement.  The practicability of reinstatement was not engaged with in any particular form.   Indeed, the Tribunal was scathing towards the respondent stating that it had engaged with the Tribunal in a ‘somewhat casual fashion’ and that it behaved as if the requirements of employment law are not of any particular concern to it.  On the facts, the Tribunal also noted that there would be no contact with Ms Gillespie who the claimant had problems with in the past as she had been retired.

Despite the problems faced by the respondent here with their evidence, the Tribunal found that the level of trust and confidence required between an employer and employee had broken down.  This was clear from the manner in which the respondent conducted the litigation as well as the actions of the claimant leading up to the dismissal.   This ranged from the failure to acknowledge any fault as well as the relentless unwarranted criticism of the course designed by Ms Gillespie.  For that reason, any reinstatement was, according to the Tribunal, likely to be unsuccessful due to the level of dislike and distrust.  For this reason, there was no order of reinstatement with a further remedy hearing scheduled relating to a financial reward.

Practical Lessons

This case details the statutory test that applies when considering to order reinstatement.  The discretion afforded to the Tribunal and the factors to be considered under Article 150 are very important. The fact the evidence put forward did not centre upon the statutory requirements is a lesson for parties to take when faced with a similar situation.  It is also important to note that the Tribunal will consider the way in which litigation has been conducted and whether any reinstatement would be successful vis-à-vis trust and confidence.

Review of substantive case is available here.