Key takeaways
Tribunals consider disclosure delays when granting extensions
Employee behaviour can reduce or even remove damages.
Contributory fault impacts discrimination remedies
Misconduct may justify lowering compensation awards.
Fair process matters in remedy decisions
Tribunals balance justice with accountability for both parties.
If it upholds an unfair dismissal claim, the tribunal can order various remedies. Most commonly, the employee will ask the tribunal to make a compensatory order, but the tribunal also has the power to order re-engagement (ie, that the employee should be re-engaged by the employer in comparable employment, on such terms as the tribunal may decide). Before ordering re-engagement, a tribunal must consider the employee’s wishes, whether it is practicable for the employer to comply with a re-engagement order and, where the employee caused or contributed to their dismissal, whether ordering re-engagement would be just and equitable. The EAT has recently considered when this latter requirement is triggered.
S had over 28 years’ service working for the UK’s international public body for cultural relations and educational opportunities, most recently in the senior role of country director for Italy. Following a daytime social event, S faced allegations that he had kissed and inappropriately touched a female employee of the British Embassy in Italy. Disciplinary proceedings ensued and S was eventually dismissed for gross misconduct. An employment tribunal subsequently upheld S’s unfair dismissal claim. This finding prompted the employer to commission a fresh independent investigation, which also concluded that S was guilty of what had been alleged.
At the remedy hearing, S sought a re-engagement order. The employer resisted this – although it confirmed that it no longer sought to allege contributory fault on S’s part, the employer relied on the new independent investigation to assert that S’s re-engagement was impracticable because it had lost trust and confidence in him. The tribunal dismissed this argument and held that the employer had commissioned the independent investigation – which it held was flawed in several respects - to avoid paying compensation and to resist S’s reinstatement as part of “a deliberate attempt to prejudice the [tribunal’s] ultimate findings.” On the balance of probabilities, the alleged sexual assault had not occurred, so S could not be said to have contributed to his dismissal. The tribunal went on to order S’s re-engagement.
The employer successfully appealed, with the EAT setting aside the re-engagement order and holding:
Practicability: the tribunal had wrongly substituted its own view as to what a fair investigation into S’s conduct would entail/conclude and this led it to err in concluding that the employer’s belief that it had lost trust and confidence in S was ‘irrational’. The key question was whether it was impracticable for the employer to re-engage S because it had lost trust and confidence in him, in circumstances where the employer accepted the findings of the independent investigator which concluded S was guilty of the alleged misconduct. It was ‘rational’ for the employer to take the investigation’s findings into account when considering the practicality of S’s re-engagement.
Contributory fault: the tribunal had erred in its approach to the issue of contributory fault because it misunderstood its obligation to consider this issue. Tribunals are not required to make a finding as to whether the employee caused or contributed to their dismissal before ordering re-engagement in all cases. It is only if the tribunal has first made a finding of contributory conduct, usually at the liability stage of the proceedings or if the employer raises this issue at the remedy stage, that the tribunal is required to consider this finding of contributory conduct when deciding whether to order re-engagement. In S’s case, the tribunal had expressly not determined S’s contributory conduct at trial (leaving the issue live for the remedy stages) and the employer then withdrew its reliance on S’s contributory conduct at the remedy stage. As the requirement for it to consider contributory conduct had not been triggered, the tribunal had erred in considering this issue.
