Labour & European Law Review Weekly Issue 303 24 January 2013
Tribunals have the power to order re-instatement, re-engagement or an award of compensation if they decide someone has been unfairly dismissed. In Rembiszewski v Atkins Ltd, the Employment Appeal Tribunal (EAT) said that, when considering whether an order for re-engagement is practicable, tribunals have to base their decision on all the facts available at the date that the order is made.
In May 2009, Mr Rembiszewski, an architect, raised concerns about the planned fire exit at a station. In September he was selected for redundancy, following an exercise in which he received a score of ten which was two points lower than the lowest scoring retained employee. He was dismissed in November.
Mr Rembiszewski claimed unfair dismissal, arguing that the scoring exercise had been skewed in order to get rid of him, because he had made a protected disclosure about the fire exit earlier in the year.
The tribunal agreed his dismissal was unfair. However, this was not because he had blown the whistle about the fire exit but because of the way he had been scored in the selection test and the way in which his appeal had been carried out.
At the compensation (or remedies) hearing in October 2010, he asked to be re-instated in his old job but accepted that, as the tribunal had found that he had been dismissed by reason of redundancy, the appropriate remedy was re-engagement. The tribunal then received further evidence from both parties before giving judgment in January 2011, when it held that it would not be practicable for Atkins to offer re-engagement as the company did not have any suitable jobs for him. Instead it made an award of just over £25,000.
Mr Rembiszewski appealed against the tribunal’s failure to make an order for re-engagement. For its part, the company submitted a conditional cross-appeal that were Mr Rembiszewski to succeed at the EAT, then the company should be able to argue that re-engagement would not work because of a loss of trust and confidence between them.
The EAT upheld Mr Rembiszewski’s appeal saying that “the practicability of reinstatement or re-engagement is to be determined as at the date it is to take effect”, which would usually mean making the decision at the end of the remedies hearing.
In this case, the tribunal made its decision after receiving submissions in early January 2011 from the parties following the hearing. However, by referring only to evidence given at the hearing in October 2010, it seemed that it had not taken into account the written evidence and submissions sent after that date.As a result, the tribunal had failed to consider evidence that indicated re-engagement might have been practical for Mr Rembiszewski in January 2011.
The tribunal had therefore erred in law by failing to consider the practicability of re-engaging him as at January 2011. This error of law undermined the decision that it would not be practicable for Atkins to comply with the order. The EAT therefore held that Mr Rembiszewski’s application for an order for re-engagement should be re-heard.
The EAT accepted the company’s cross-appeal, saying it could argue at the re-hearing that it would be impracticable to take Mr Rembiszewski back because he lacked the necessary trust and confidence in the company that was needed for a successful relationship.