In the context of unfair dismissal claims, the Employment Tribunal (ET) has the authority to order remedies such as compensation, reinstatement, or re-engagement. The decision to order re-engagement, in particular, involves a nuanced consideration of several factors, including the employee's contributory conduct. This analysis explores when a tribunal should consider contributory conduct before ordering re-engagement, drawing on recent case law and statutory provisions.
The role of contributory conduct
Contributory conduct refers to actions by the employee that may have contributed to their dismissal. When considering re-engagement, the tribunal must evaluate whether the employee's conduct played a role in their dismissal and whether it would be just and equitable to order re-engagement in light of this conduct. The Employment Rights Act 1996 (ERA) provides the legal framework for these considerations, emphasising the need for fairness and practicality in tribunal decision.
Key considerations for tribunals
Employee's wishes: The tribunal must first consider the employee's expressed desire for re-engagement. This involves assessing whether the employee genuinely wishes to return to work under similar conditions or if their request is strategic, perhaps to leverage a better settlement.
Practicability for the employer: The tribunal must determine whether it is practicable for the employer to comply with a re-engagement order. This includes evaluating the employer's operational needs, the availability of suitable positions, and any potential disruption to the workplace.
Contributory conduct: The tribunal must assess whether the employee's conduct contributed to their dismissal. This assessment is crucial in determining whether re-engagement would be just and equitable. The tribunal is not required to make a finding of contributory conduct in every case, but it must consider it if raised by the employer or evident from the proceedings.
Case law insights
The case of British Council v Sellers provides a pertinent example of how tribunals handle contributory conduct in re-engagement decisions. In this case, the Employment Appeal Tribunal (EAT) overturned an ET's decision to order re-engagement, highlighting the importance of considering the employer's perspective and the practicality of re-engagement. The EAT emphasised that the tribunal should not substitute its judgment for that of an independent investigation, particularly when the employer has lost trust and confidence in the employee.
Similarly, in the case of Kelly v PGA European Tour, the Court of Appeal confirmed that an employer's genuine and rational belief in the breakdown of trust and confidence can render re-engagement impracticable. This case underscores the need for tribunals to consider the employer's perspective and the feasibility of re-engagement in light of the employee's conduct.
Practical implications for employers and employees
For employers
Documenting conduct: Employers should maintain thorough documentation of any conduct that may contribute to an employee's dismissal. This documentation can be crucial in tribunal proceedings, particularly when arguing against re-engagemen.
Rational beliefs: Employers must ensure that their beliefs regarding an employee's conduct are rational and well-founded. Unsupported assertions are unlikely to persuade a tribunal that re-engagement is impracticable.
Operational considerations: Employers should be prepared to demonstrate how re-engagement would impact their operations, including any potential disruptions or challenges in accommodating the employee.
For employees
Expressing wishes: Employees should clearly articulate their desire for re-engagement, if applicable, and be prepared to demonstrate their willingness to return to work under similar conditions.
Addressing conduct: Employees should be aware of how their conduct may be perceived and address any concerns proactively. This may involve providing context or mitigating factors that could influence the tribunal's decision.
Understanding rights: Employees should understand their rights under the ERA and the potential outcomes of tribunal proceedings, including the possibility of re-engagement or compensation.
The consideration of contributory conduct in re-engagement orders is a complex process that requires careful evaluation of multiple factors. Tribunals must balance the interests of both employers and employees, ensuring that decisions are fair, just, and practicable. By understanding the legal framework and recent case law, both parties can better navigate the challenges of unfair dismissal claims and the potential for re-engagement orders.
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