Regular readers of this blog will be well aware of my longstanding complaint that Tribunals pay too little attention to the option of reinstatement but advance on the basis of a false assumption that reinstatement will always be an unrealistic solution.
It’s nice to find the senior employment judiciary in agreement. In last year’s case of King v Royal Bank of Canada Europe Ltd [2012] IRLR 280, HHJ Richardson referred a case back to the Tribunal where a bank worker’s redundancy dismissal was automatically unfair under the old statutory dispute resolution procedures (i.e. unfair because no fair procedure had been followed), but the Tribunal accepted there was no alternative decision and capped her award to two months’ wages.
Richardson J’s findings are set out in the IRLR’s headnote (emphasis added):
“The tribunal had not complied with the statutory requirement of the ERA 1996 s 112(2) Q [736] to explain to the claimant the possibility of reinstatement or re-engagement. This has always been a difficult point because of the monumental gap between the theory of the ‘primacy’ of these remedies and the year-on-year statistics that show that they are simply not awarded in practice. Normally it makes little difference if Homer nods vigorously at this point in proceedings. However, this case shows that a tribunal may still have to be careful, at least sometimes, because on the facts here the claimant had actually mentioned reinstatement in her ET1 and had referred to re-engagement in her witness statement. In those circumstances at least it remains an error of law not to comply with s 112(2). Indeed the judgment (at para 55) goes further and states that ‘compliance with s 112 is a valuable discipline for the purpose of ensuring that important issues relating to reinstatement and re-engagement are not overlooked’, though it must also be pointed out that the judge did acknowledge that under the older authority of Cowley v Manson Timber Ltd [1995] IRLR 153, CA it is not automatically an error of law for a tribunal not to comply with the section; given that tribunal procedure is supposed to be being simplified, to add a requirement of active consideration of remedies that normally no-one wants could be seen to be regressive. However, this decision does place more emphasis back on the section, at least where there is some mention of these remedies by the claimant (though of course there is then always the cynical argument that that mention may only have been to up the ante for a financial settlement); the balance here is notoriously difficult.”
In a week where the Coalition has been setting out new powers for employers to railroad employees through very one-sided “compromise agreements” the case is also of interest for the dim view Richardson took of the Respondent’s procedure for dismissing staff, which had consisted of (i) inviting the employee to a meeting, (ii) explaining that they were going, (iii) putting them on immediate garden leave, (iv) providing no appeal and (v) offering a financial settlement by way of a compromise agreement. Such a procedure, Richardson J stated, was likely to lead to hasty and ill-considered managerial decisions and to be a complete dereliction of an employer’s duty under statute and good practice, all the more unacceptable in a large organisation with professional management, including an HR department.
And speaking of HR departments, it will be noted that within the Coalition’s plans for introducing statutory penalties for employers who breach employment law, there is a proposal that these quasi-aggravated damages will apply in circumstances including where the employer has “a dedicated HR team“.
It is at least hoped that that reform, combined with decisions such as the one above in King, remind personnel managers that their presence is supposed to result in more, not less, compliance with minimal employment standards.
Hat tip to Paul Ratcliffe
