Reinstatement
A rarely used remedy which is probably past its sell by date as it's hardly ever used
Reinstatement
Here’s a headline I was going to run in the News section but I thought it worthy of additional comment.
Sky employee fails to get job back after short skirts comment despite 'unfair dismissal'
A SKY employee has lost his bid to be reinstated despite being 'unfairly dismissed' over allegations he told a colleague if two young girls wearing short skirts were raped it would be 'their own fault', a tribunal ruled. Retail advisor Raja Minhas, 44, had sought his old job back at a remedy hearing after being dismissed for comments about the teens as they walked past his shopping centre stand. LancsLive
Background
Mr Minhas worked as a Sky rep and was dismissed for gross misconduct. He made a comment to a work colleagueon the Sky stand in a shopping mall in Blackburn. The two employees were there to drum up business for Sky products. No-one else was on the stand except the two of them, and they both wore Sky uniforms which indicated for whom they worked.
Two girls in mini skirts walked past them and it was reported he said to his colleague, ‘girls in general who wear skirts like that and then get raped it’s their own fault’
The matter was reported, Mr Minhas was suspended, a disciplinary held and he was sacked - which was upheld on appeal, and so he trundled off to the employment tribunal1. Now there’s nothing unusual about that, it’s the kind of case tribunals deal with day in, day out, but. . .
Compensation
Unusually, in addition to compensation, Mr Minhas decided he would like his job back; he wanted reinstatement, but it didn’t happen. I have attended many tribunals in my time and can honestly say, apart from a case I’m appearing in this week, reinstatement has never been requested, let alone granted. It’s a rarity to say the least.
In the overall scheme of things reinstatement orders account for less than 1% of successful tribunal claims. Yet when claiming for unfair dismissal, on the claim form under the heading ‘What do you want if your claim is successful?’ the first box available to tick is for reinstatement. It appears this is the primary remedy available in the tribunal, but is so often ruled out.
It’s not surprising when one considers the factors surrounding an employment tribunal claim. Frankly, the last thing I would want to do if I won a claim of unfair dismissal is ask for my old job back! I don’t think the relationship between employee and employer would be all sweetness and light after a prolonged and potentially expensive exercise in litigation. In reality, a working relationship between an employer and employee is probably irreparably damaged following a tribunal case.
Personally, I think the remedy hails back to days gone by, when industrial tribunals were formed with the intention of providing a swift, cost free resolution to employment disputes. I can see workers in the large industries winning their case and asking to be relocated to another department, under a different management structure. That may still happen today but in my experience it is a rarity, on par with winning the lotto!
It does beg the question - why are employment tribunals still considering reinstatement?
The answer lies in section 113 of the Employment Rights Act 1996 which states:
An order under this section may be—
(a) an order for reinstatement (in accordance with section 114), or
(b) an order for re-engagement (in accordance with section 115),
as the tribunal may decide.
The tribunal has to consider whether the complainant wishes to be reinstated and whether it is practicable for the employer to comply with an order for reinstatement, and, where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.2
So, the tribunal has a very wide discretion and no doubt 99% of the cases heard are eliminated because they fall within one of the three considerations above. Nevertheless, tribunals still have to consider reinstatement before moving on to other forms of compensation such as money!
It’s not surprising Mr Minhas was not reinstated, particularly as the tribunal judged he contributed to his own dismissal to the tune of a 33% reduction in his tribunal award.
Council building inspector wins unfair dismissal case
An employment tribunal has ruled that the London Borough of Islington unfairly dismissed a disabled clerk of works in the building’s section of the council’s housing department. Construction Index
Chartered surveyor who told the company he worked for it had HIV but he would 'stop it becoming full blown AIDS' is left with a £10,000 bill after losing discrimination case
Geoffrey Madawho claimed he was hired to save Gen2 Properties, an operational company owned by Kent County Council, and acted like a 'bull in a china shop'. He made several comments which offended colleagues with ‘highly descriptive, colourful and in the circumstances, insensitive words’, the tribunal heard. Daily Mail
Alton Towers security guard sacked after he pursued shoplifters in 'unroadworthy' car
Alton Towers has sacked a security guard after he was found to be continually pursuing 'shoplifters' in his "unroadworthy" company vehicle after it had been hit by a fleeing VW Golf. Merlin Attractions Operations, which runs the Staffordshire theme park, found Martin Hughes guilty of gross misconduct. Staffordshire Live
Driffield chef unfairly sacked for ectopic pregnancy awarded £17,000
A chef has been awarded £17,000 in compensation after she was sacked for taking sick leave while recovering from an ectopic pregnancy. Hannah Pawley, from East Yorkshire, was dismissed from Hanley's Restaurant in Driffield while still ill, Leeds Employment Tribunal heard. BBC