Unfair dismissal and re-engagement

A Court of Appeal ruling means a re-engagement order does not give an unfairly dismissed employee an actual right to be re-engaged, writes Clive Sheldon QC.

The Court of Appeal has ruled in the case of MacKenzie v. University of Cambridge [2019] EWCA Civ 1060 that there is no power to require an employer to re-engage an employee who has been unfairly dismissed, even where an order for re-engagement has been made. Parliament did not intend for the re-engagement order to be enforceable other than by requiring the employer to pay the financial awards set out at section 117(3) of the Employment Rights Act 1996 (“the 1996 Act”): this includes an “additional award”.

Ms. MacKenzie was a law lecturer at the University until her dismissal. She continued to work for the University on a casual basis thereafter. The University conceded that she had been unfairly dismissed. The employment tribunal ordered that she should be re-engaged, finding that trust and confidence had not broken down with the University as a whole. The University decided not to re-engage her, but offered to (and did) pay her the maximum amount that she could have been ordered by the Tribunal pursuant to section 117(3) of the 1996 Act.

Ms. MacKenzie challenged the University’s decision by way of judicial review. She contended that the 1996 Act, as properly construed, did not allow the University to refuse to comply with the order for re-engagement. She also contended that this construction was required under the Human Rights Act 1998: arguing that the right to a fair hearing under Article 6 included the right to have the order for re-engagement complied with; and that the order for re-engagement was a “possession” for the purposes of Article 1 Protocol 1 of the Convention.

The Court of Appeal dismissed these arguments. Unfair dismissal was a statutory concept, and Parliament had decided not to provide enforcement machinery for a re-engagement (or reinstatement) order other than the pecuniary awards in section 117(3) of the 1996 Act. According, to the Court of Appeal, the 1996 Act “does not give [an employee] a right to be actually re-engaged”.

The Court of Appeal held that the Strasbourg jurisprudence did not add anything to the analysis. There were cases in which the Strasbourg Courts had required reinstatement of employees, but only where the relevant domestic law allowed orders for actual reinstatement. That was not applicable to the unfair dismissal regime in the 1996 Act.

Clive Sheldon QC is a barrister at 11KBW. He appeared on behalf of Cambridge University in the Administrative Court and Court of Appeal, instructed by Catherine Savage and Andrew Adams of Shakespeare Martineau.