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Court of Appeal upholds University’s decision not to reinstate unfairly dismissed employee, despite being previously ordered to by lower court.

Mackenzie v The Chancellor of University of Cambridge [2019] EWCA Civ 1060

Related Member(s):
Aidan O’Neill QC (Scot) QC
Related Practice Area(s):
Employment Law
Court:

This case discussed the enforceability of the Employment Rights Act 1996 where a defendant refuses to comply with an order to reinstate or re-engage an employee that was unfairly dismissed. As this issue has not been aired before, this case can be seen as serving a public interest function in clarifying the law on this matter of general public importance.

The Appellant was a law lecturer at University of Cambridge but was dismissed from her established position as a lecturer with the University with effect from 31 December 2013.   The Appellant appealed against this dismissal and the defendant conceded that they had unfairly dismissed the appellant. In a subsequent remedies decision the University was ordered to re-engage the Appellant as a University teaching officer. However, they refused to do so.

The Appellants then brought a JR against the university arguing that:

 

  • the statutory scheme of the Employment Rights Act 1996 – in providing unequivocally for the primary remedy available to an Employment Tribunal to be one of ordering, where otherwise reasonably practicable, the re-instatement or re-engagement of an employee who is found to have been unfairly dismissed by the employer, but then making limited provision (at least within the four corners of that statute) for the effective enforcement by the employee before the Employment Tribunal of that remedy – has to be, and can be, read in a manner which is compatible with the appellant’s fundamental rights and with the constitutional principles of the rule of law which require final court judgments to be obeyed and complied with;

and

  • the defendant’s refusal, in the circumstances of this case, to comply with the final court order pronounced by the Employment Tribunal for the appellant’s re-engagement with the defendant was and is incompatible with the appellant’s fundamental rights, protected both as a matter of common law and under and in terms of the Human Rights Act 1998 (HRA)

 

The appellant argued that there appears to be a serious discrepancy between the wording of the statute – which clearly embodies the intention of Parliament that reinstatement or re-engagement be the primary remedy available to unfairly dismissed employees – and the practice of the employment tribunal system where orders for re-instatement or re-engagement are rarely, if ever, pronounced.  It may be that this is due to no effective enforcement of the remedy of re-instatement and therefore there is only a right to the possibility of limited additional monetary compensation being awarded.   The appellant maintained however, that if Parliament had intended that result –  it would have said so clearly and unequivocally in the statute.

Held: The Court of Appeal rejected the appellant’s case and held that the obligation is not one that the statute intended to be specifically enforceable. The only remedy for non-compliance is the additional award of compensation.

Aidan O’Neill was involved in this case.