The Court of Appeal has held in MacKenzie v The Chancellor, Masters & Scholars of the University of Cambridge that the remedy for non-compliance with a tribunal order for re-engagement is compensation. As there is no right to be re-engaged as such, claimants cannot bring a claim arguing that it has been breached.

Basic facts

At a tribunal hearing for unfair dismissal, the university conceded that it had unfairly dismissed Ms MacKenzie from her post as a law lecturer. Although the tribunal then made an order for re-engagement under section 115 of the Employment Rights Act 1996 (ERA), the university failed to comply with it and instead paid the additional award which it could have been ordered to pay under section 117.

Ms MacKenzie then commenced judicial review proceedings against the university, arguing that the order for re-engagement under section 115 created an obligation on the university to re-engage her. It also created a correlative right on her part to be re-engaged.

She therefore asked the court to quash the university’s decision to refuse to comply with the order to re-engage her and to declare that its refusal was unlawful. She also claimed that if she was not entitled to this solution, her rights under the Human Rights Act 1998 would be infringed. 

Relevant law

Section 115(2)(d) states that on making an order for re-engagement, the tribunal must specify “any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of re-engagement”.

Section 117(1) states that a tribunal shall make an award of compensation if: (a) an order [for reinstatement or re-engagement] is made and the complainant is reinstated or re-engaged, but (b) the terms of the order are not fully complied with.

Section 117(3) states that … if an order …  is made but the complainant is not reinstated or re-engaged in accordance with the order, the tribunal shall make (a) an award of compensation for unfair dismissal; and (b) an additional award of compensation between 26 and 52 weeks' pay.

Decision of the Court of Appeal

The court disagreed with her, however, holding that section 115 had to be read in the context of section 117. When read together, it was clear that an “order for re-engagement” did not impose an absolute obligation on the employer to re-engage the employee, nor a right on the employee to be re-engaged.

Instead, it created a situation in which the employer either had to re-engage the employee or become liable for the awards specified by section 117(3), which included an additional award on top of what it would have had to pay if no re-engagement order had been made.

The reason why there was no statutory machinery for requiring an employer to actually re-engage an employee, as opposed to requiring them to pay an additional award, was because the statute did not give them a right to be re-engaged. That being so, failure to re-engage Ms MacKenzie did not represent a breach of any right, including under the Human Rights Act. As no right had not been breached, she could not claim a remedy for a non-existent breach.