Reinstatement after Unfair Dismissal

The Tribunal has the power to order reinstatement i.e. reinstating the employee to his original job. The Tribunal cannot insist that the employer actually reinstates, but can award additional compensation if the employer refuses to comply with a reinstatement order.

Reinstatement must be considered as a first option. The Tribunal must ask the employee if he wishes to be reinstated and if yes, consider:

1. whether it is practicable for the employer to comply;

2. whether it would be just to order reinstatement; and

3. the effect on the employer’s business.

Role no longer available

If the employer has taken on a replacement, the Tribunal must disregard that fact unless:

1. it was necessary to take on the replacement for the dismissed employee; and

2. the employer had waited a reasonable time and had not heard from the employee that he was seeking reinstatement and that the only reasonable course was to take on a permanent replacement.

Note that if the Tribunal orders reinstatement it will order compensation for the lost wages over the period before reinstatement.

Additional Award

In the event that the employee is not reinstated after the employment tribunal has asked the employer to do so and the employer refuses, the employment tribunal will issue these awards against the employer in addition to the Basic Award and the Compensatory Award.

An additional award of between 26 and 52 weeks' worth of gross pay may be given out in accordance with section 117 of the ERA 1996. The award will range from between £16,718 and £33,436 and will be paid out over a period of between 26 and 52 weeks, up to a maximum of £643 a week (beginning on April 6, 2023).

The tribunal has the authority to award more than these amounts if it finds that the employee has, in reality, lost a significant amount more than what is stated below, even if the company refuses to rehire the employee.

Getting a reinstatement order

You will be told by solicitors that the likelihood of getting a reinstatement order is less than one percent. In the Employment Tribunal, where I represented a claimant, the claimant was given a reinstatement order against Royal Borough of Kensington and Chelsea Council and was paid £85,000 for an unfair redundancy dismissal. I was able to get this result and therefore, it is feasible. Read the winning skeleton argument.