When an Employment Tribunal (ET) upholds a complaint of unfair dismissal, it can order remedies beyond financial compensation. These include reinstatement, which restores the employee to their previous role as though they were never dismissed, or re-engagement, which places the employee in a comparable role with the employer.
Reinstatement and re-engagement orders are relatively rare, as tribunals must consider several factors before granting such remedies, including:
The practicability of re-engagement often hinges on whether trust and confidence between the parties can be restored.
In The British Council v Sellers, Mr Sellers, a long-serving British Council employee, was dismissed for gross misconduct following allegations of sexual misconduct at a social event. The ET found that the dismissal was unfair due to a flawed investigation, which failed to properly evaluate the evidence. It held that the decision-maker’s belief in Mr Sellers’ misconduct was unreasonably derived from this flawed process.
Following the unfair dismissal finding, the British Council commissioned an independent investigation, which upheld the original findings of gross misconduct. At the remedy stage, Mr Sellers sought re-engagement. The Council opposed re-engagement, arguing that it was impracticable due to a genuine and rational loss of trust and confidence, operational restructuring, and disputes over Mr Sellers’ continued residence in Council-provided accommodation and failure to return artwork. The Council explicitly chose not to argue that Mr Sellers had contributed to his dismissal in any way.
Despite this, the ET concluded that it was required to determine whether Mr Sellers had caused or contributed to his dismissal. It made its own findings on the alleged misconduct, an issue that had not been raised by the employer, and ordered re-engagement.
The EAT overturned the re-engagement order, finding that the ET had made significant errors. It held that tribunals are not required to assess whether an employee contributed to their dismissal unless this is raised as a live issue by the parties. By addressing this point unnecessarily, the ET exceeded its remit and made findings on Mr Sellers’ alleged conduct that were not part of the dispute.
The EAT also found that the ET had failed to properly assess the practicability of re-engagement. Instead of focusing on whether the British Council’s belief in Mr Sellers’ misconduct was genuine and rationally held, the ET scrutinised the quality of the independent investigation. The EAT clarified that practicability must be assessed from the employer’s perspective. In this case, the Council’s belief that trust and confidence had been irreparably damaged was both genuine and rational, making re-engagement impractical.
This case acts as a reminder that re-engagement orders are rare and depend heavily on whether trust and confidence can be restored. Employers opposing such remedies should focus on demonstrating genuine and rational concerns about the practicality of re-engagement, ensuring these are well-documented.
The judgment also serves as a reminder that tribunals should respect the scope of the issues raised by the parties. Employers can take comfort that arguments explicitly abandoned in proceedings should not be revived by the tribunal.