‘Do I really need to take this employee back?’ – the question of reinstatement and re-engagement

Posted: 24/01/2025

One concern for employers facing unfair dismissal claims is the risk of the Employment Tribunal (ET) ordering reinstatement (which requires the employer to treat the employee in all respects as if they have never been dismissed) or re-engagement (which requires the employer to re-engage the employee in comparable or other suitable employment) of the former employee. These orders may be made in a successful unfair dismissal claim if requested by the claimant. 

In such cases, where an employment tribunal decides that reinstatement is not appropriate, it must then consider re-engagement as a possible alternative. Dismissing managers will often claim it is impossible from a practical perspective to allow an employee to return, particularly where the departure has been acrimonious. 

What can an employer do if a tribunal orders either reinstatement or re-engagement? 

The answer is that the employer can either appeal against the decision, which will be costly and uncertain, or it can choose not to comply with the order, which may be expensive and result in each relevant employee being entitled to an additional award of between 26 and 52 weeks’ pay, subject to the current statutory limit of £700 per week.

While it is rare for an employment tribunal to order reinstatement or re-engagement (such orders are made in less than 1% of cases), it can still be a cause for concern where a large number of ex-employees are claiming unfair dismissal. For example, there may be a significant number of employees who are dismissed after refusing to accept new terms and conditions in a ‘fire and rehire’ process and decide to pursue claims for unfair dismissal with reinstatement orders instead. In those situations, the cost of additional awards may be particularly expensive for employers.

When deciding whether to make an order for reinstatement, the ET must take into account any wish expressed by the claimant in the case, whether it is practicable for the employer to comply with such an order and, where the claimant has caused or contributed to the dismissal, whether it would be just to order reinstatement. If the ET decides not to make an order for reinstatement it should then look at the same factors again, but this time in respect of an order for re-engagement.

Practicability is a question of fact for the ET and is to be determined at the date when it would be making the order, so the circumstances may well be different from the circumstances at the date of dismissal. The Court of Appeal has held in the case of Kelly v PGA European Tour [2021] that ‘practicable’ should mean more than merely possible, but capable of being carried into effect with success.

British Council v Sellers

In the recent Employment Appeal Tribunal (EAT) case of British Council v Sellers [2025], the EAT considered an order for re-engagement which had been made by the ET following Mr Sellers’ successful unfair dismissal claim. Mr Sellers had been employed by the British Council since 1 September 1990, with his most recent role being country director for Italy. On 7 May 2019 he was dismissed for gross misconduct following an allegation of sexual misconduct against him made by a colleague. 

The British Council argued that, following both internal and external investigations supporting allegations of sexual assault, it had lost trust and confidence in Mr Sellers; there had been a reduction in available posts since his dismissal due to a reorganisation; and that disputes had arisen regarding Mr Sellers’ continued residence in his apartment in Rome and failure to return artworks. However, the ET took the view that it was practicable to make an order for re-engagement largely based on its findings that, when considering contributory conduct, on the balance of probabilities, the alleged sexual assault did not occur.  

The British Council appealed against the re-engagement order to the EAT. It was held that, although whether a claimant had caused or contributed to the dismissal was a factor to take into account when considering an order for re-engagement, there was no requirement for the ET to make such a finding where this had not been argued by the employer, as in this case.  

The EAT also held that the ET had lost sight of the fact that practicability was to be determined from the perspective of the employer, and it should have focused on whether re-engaging Mr Sellers was practicable as the British Council had accepted the finding of an independent report that he had sexually assaulted a colleague. The ET had instead made the error of testing the reasonableness of the investigation and the EAT held that in this respect its decision was perverse. 

In summary, although reinstatement and re-engagement orders are rare and should not normally cause much concern for employers where there is a genuine dispute, they can be a useful tool for claimants to use when pushing for a settlement in situations where the employer will view it as impossible to take them back. 

For further information please contact Eugene Wojciechowski.

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