Is re-engagement always an option?August 20, 2013
The recent case of Oasis Community Learning v Wolff has raised the possibility of employers being ordered to re-engage former employees even in difficult circumstances.
Under the Employment Rights (Northern Ireland) Order 1996 a tribunal is required to consider reinstatement or reengagement as the primary remedy for unfair dismissal. Nevertheless such orders are rare – not just because they are seldom granted, but also because they are rarely requested by employees.
If a finding of unfair dismissal is made the Tribunal is required to ask if the employee wishes to be reinstated or re-engaged. If the employee does request either the Tribunal must then consider whether such an order would be practicable. Generally, where relations have broken down between the parties such orders are not.
In Oasis Community Learning Mr Wolff had been dismissed as a teacher in one of Oasis’ schools following allegations of an overtly confrontational approach with pupils. Oasis agreed that Mr Wolff had been unfairly dismissed due to serious defects in the dismissal procedure and Mr Wolff requested re-engagement.
The Tribunal accepted this, ordering re-engagement in a different school despite Mr Wolff having raised numerous allegations against a variety of Oasis’ staff, including members of the HR department, the Chair of the Board and other employees. The Tribunal rejected Oasis’ arguments’ that Mr Wolff had harassed its staff with aggressive correspondence and offensive allegations to the extent that re-engagement would be wholly impracticable.
Mr Wolff would be employed in a different school 200 miles away and the Tribunal considered that this would not be impracticable as he would be working with different staff. This was despite it being conceded that he would still have to have a working relationship with his employer Oasis and the HR staff whom he had also insulted.
Although the Tribunal stated this case should not be seen as a precedent employers should be aware that re-engagement may be possible even in cases where is seems impracticable to say the least. Employers should also be aware that the Tribunal is required to offer re-instatement or reengagement as a remedy to unfair dismissal, even in cases where the claimant has not requested it in his claim form.
Please note: The content of this article is for information purposes only and further advice should be sought from a professional advisor before any action is taken.