breach of contract?

With reductions in tribunal awards on the way, and with it becoming increasingly difficult to find alternative employment, the remedies of reinstatement and re-engagement, which have rather fallen into disuse, are perhaps due a revival.

Rembiszewski v Atkins Ltd is a decision on when the practicability of the dismissed worker returning to work should be assessed – should it be at the point when the question of remedy was considered by the tribunal or at the point when the return to work would actually happen?

In May 2009 Mr Rembiszewski, an architect, raised concerns about a fire exit at a railway station. This was a protected disclosure in the context of whistleblowing legislation.

In September 2009 the employer commenced redundancy consultations. Based on scoring in pools of candidates at risk Mr Rembiszewski was selected for redundancy.

The Employment Tribunal held that he was dismissed not for whistleblowing but for redundancy. However the procedure was flawed and therefore his dismissal was unfair. Mr Rembiszewski applied for reinstatement but, since he was made redundant, the Tribunal determined that the appropriate remedy was re-engagement. The employer maintained that this was impractical, taking into account in particular an assertion made in the course of the proceedings that the Company had acted vexatiously, abusively, disruptively, or otherwise unreasonably. As it turned out, the Tribunal concluded that there were no suitable jobs available for Mr Rembiszewski and he was therefore awarded compensation of £25,403.

On appeal it was contended on behalf of Mr Rembiszewski that the Tribunal erred in not considering reinstatement and that practicability should be considered at the time either reinstatement or re-engagement would take effect rather than the date of dismissal. There was also a Polkey argument, i.e. that if the correct redundancy procedure had been followed then the outcome would have been the same. This was quickly rejected by the Employment Appeal Tribunal since, had the employer wished to rely on it, it should have adduced evidence in this regard at the Tribunal hearing and it did not do so.

It was settled that re-engagement rather than reinstatement was the option potentially available. As for the date at which practicability of returning to work should be considered, it was confirmed that this must be the date at which it would take effect. Unusually in this case there was further evidence heard after the main hearing (dealing with re-scoring in the redundancy exercise in the context of remedy) and it followed that this additional evidence could be taken into account when considering the practicability of returning to work.

There remained the question of the potential impact on practicability of lack of confidence in a former employer. The EAT took the view that this was a relevant factor when deciding whether re-engagement was practicable or whether discretion should be exercised to make such an order.

The Employment Tribunal’s refusal of re-engagement was thus set aside, and the issue sent back to the same Tribunal to be considered as at the point when the it had all the relevant evidence available about the circumstances . The EAT also held that the employer could now raise the additional argument that it was not practicable to re-engage the architect because confidence between the parties had broken down.