Can an unfairly dismissed employee get an injunction ordering re-engagement (or reinstatement)?
No, held the Court of Appeal in Mackenzie v The University of Cambridge.
The Claimant was unfairly dismissed. The tribunal made an order for re-engagement under s115 Employment Rights Act. The University refused to comply, paying the additional award (between 26 and 52 weeks pay) instead. The Claimant sought a court order to require the University to comply with the re-engagement order. The Court of Appeal refused the request that was effectively seeking an injunction ordering re-engagement (although due to the particular nature of the employer, this was sought via judicial review).
The Court noted that a re-engagement order is part of the self-contained system for unfair dismissal in the exclusive jurisdiction of the employment tribunal. The 'additional award' where re-engagement is refused is mandatory, no other remedy is available. Re-engagement is not like interim relief, which allows for the continuance of a contract for limited purposes after certain dismissals.
Whilst the additional award was £107,467.07 (the maximum 52 weeks pay), the original compensatory award alongside re-engagement was £102,901.43. As the additional award replaces the compensatory award, the increased award against the employer for refusing re-engagement was merely £4,565.64. This was the clear effect of the statutory provisions and the circumstances did not justify a departure from them. Failing to 'actually' re-engage does not breach any right, and there is no Human Rights angle requiring actual re-engagement so as to provide an effective remedy.
Thanks to Ed McFarlane of Deminos HR for preparing this case summary.