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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

Related Member(s):
Aidan O’Neill QC (Scot) QC
Related Practice Area(s):
Employment Law, Discrimination and Equality

The Appellant was appointed as a law lecturer at the University of Cambridge starting in 2006, initially on an unestablished basis, then “established” in a permanent post. The Appellant was dismissed from her established position as a lecturer with the University with effect from 31 December 2013.   The Appellant appealed against this dismissal using the University’s internal review appellate procedures.   Her internal appeal within the University having been refused, the Appellant then initiated proceedings against the University before the employment tribunal – under Section 111(1) of the Employment Rights Act 1996 (ERA) –  claiming, among other things, that she had been unfairly dismissed

A substantive hearing was held before the Employment Tribunal on this matter.   After the appellant’s evidence, and that of her supporting witnesses, had been led and cross-examined upon, the University then decided to lead no evidence in its defence but instead conceded to the Tribunal that it had unfairly dismissed the appellant, contrary to Section 94 ERA.

In a remedies decision dated and sent to the parties on 8 December 2015 in ET Case Number 3400562/2014 the Huntingdon Employment Tribunal – after a contested hearing at which it heard evidence as to the (non-)practicability of the Appellant’s re-engagement in its employment following the University’s concession that it had unfairly dismissed the appellant – ordered the University to re-engage the Appellant as a University teaching officer in the role of lecturer.

The University refuses to comply with this order.  It claims, in essence, that under the Employment Rights Act 1996 (“ERA”) there is no enforceable legal duty upon it to re-engage the Appellant and therefore no breach of duty in its refusal to comply with the Tribunal’s order.

The Appellant’s 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)

These legal issues had not previously been aired before the courts, and had not been the subject of any prior decision by this court or any court below.   The claimant’s action could therefore be seen as also serving a public interest function in clarifying the law on this matter of general public importance.

The fact is that, in this case, there was a positive finding from the Employment Tribunal not only that it was reasonably practicable for the defendant to re-engage the appellant, but that the necessary trust and confidence essentially to the working of any employment relationship had been maintained between the parties, as shown by the fact that the defendant continued (and continues) post-termination to employ the appellant on a casual zero-hours basis.   But as the Court of Appeal observed, the issues raised in this appeal is not one which is confirmed to the particular circumstances of the appellant’s case but would have, if the appellant’s submissions were correct, have much broader implication for the field of statutory employment protection generally.

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 is the tribunal and courts, rather than Parliament, which in practice appear to have an aversion to pronouncing orders for specific performance in the employment field.   The figure of between 1% and 2% is sometime mentioned as being the proportion or such orders being pronounced as compared to simply an award of (statutory and ever decreasingly capped) compensation.

It may be that this disparity between the wording of the statute and the practice of the tribunal is because the tribunals consider there is no point in pronouncing orders for re-instatement or re-engagement as there is no effective enforcement mechanism for these orders and employer can, as in this case, simply refuse to comply with little or no sanction against them.     This disparity between what the statute says and what the tribunal do result in a reversal of the classic principle of the rule of law ubi ius, ibi remedium into the earlier brocard “no writ, no remedy; no remedy, no right”.   If there is no way of effective enforcement of the remedy of re-instatement or re-engagement there is, in reality, no such right to re-instatement or re-engagement.  There is a right only to the possibility of limited additional monetary compensation being awarded.    If Parliament had intended that result it would have said so clearly and unequivocally in the statute.  It did not.

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