Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REFS: 03750/99 UD

03751/99 BC

CLAIMANT: Alison Ince

RESPONDENT: East Antrim Institute of Further and Higher Education

DECISION ON REINSTATEMENT AND RE-ENGAGEMENT

The unanimous decision of the tribunal is that it would not make an order for the claimant's reinstatement or re-engagement. The tribunal will now reconvene to consider the question of compensatory award.

Appearances:

The claimant appeared in person.

The respondent was represented by Ms A Finegan, Barrister-at-Law, instructed by South Eastern Education & Library Board Legal Services.

REASONS

1. The tribunal was asked to consider the issue of remedy in light of the respondent's admission of liability for the claimant's unfair dismissal from her post of Employment Liaison Officer at the East Antrim Institute in June 1999.
2. By agreement between the parties, the tribunal was asked first to consider the remedies of reinstatement or re-engagement, before any consideration of a compensatory award.
3. Accordingly, the tribunal considered whether either order (for reinstatement or re-engagement) was appropriate. The tribunal heard evidence from the claimant, Ms Ince, and from Ms Anderson, the respondent's Personnel Officer, and from Mr Blayney, the respondent's Director.
4. The tribunal first considered the option of reinstatement. In exercising its discretion the tribunal took into account the matters set out in Article 150 of the Employment Rights (Northern Ireland) Order 1996. It also had regard to the authorities set out Harvey on Industrial Relations and Employment Law. Article 150, so far as material, provides as follows:-

(1) In exercising its discretion under Article 147 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account –

a. whether the claimant wishes to be reinstated;

b. whether it is practicable for the employer to comply with an order for reinstatement; and

c. where the claimant caused or contributed to some extent to dismissal, whether it would be just to order his reinstatement.

(2) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms.

(3) In so doing the tribunal shall take into account –

a. any wish expressed by the claimant as to the nature of the order to be made;

b. whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement; and

c. where the claimant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and, if so, on what terms.

5. The tribunal was required to consider first:-

(a) Whether the claimant wished to be reinstated.

It was clear to the tribunal that the claimant wished to be reinstated.

The tribunal was then required to consider:-

(b) Whether it was practicable for the employer to comply with an order for reinstatement.

On the evidence of Ms Anderson and Mr Blayney, the tribunal found as a fact that the claimant's former post of Employment Liaison Officer (and those of her three colleague ELOs) had been phased out, as part of a restructure, as far back as 2002 – 2003. The post had been replaced by a substantially different post, that of NVQ Support Officer. The tribunal therefore concluded that reinstatement was not a practicable option and declined in the circumstances to make an order for reinstatement.

6. The tribunal then considered the option of re-engagement.

The tribunal considered:-

(a) Whether the claimant wished to be re-engaged.

It was clear to the tribunal that the claimant wished to be re-engaged as an alternative to being reinstated.

The tribunal then considered:-

(b) Whether it was practicable for the respondent to comply with an order for re-engagement.

On the evidence of Ms Anderson and Mr Blayney, the tribunal made the following findings of fact:-

(i) The requirements for the posts of Employment Liaison Officer were substantially different from those for the post of NVQ Support Officer.

(ii) Even with the assistance of re-training for the role of NVQ Support Officer there was no requirement or scope for an NVQ Assessor in the areas of the claimant's vocational competence – broadly business studies or administration.

(iii) There were no suitable alternative vacancies for which the claimant could be considered.

(iv) Costs pressures on the respondent did not permit the Institute simply to create a post for the claimant.

Accordingly the tribunal concluded that it would not be practicable for the respondent to comply with an order for re-engagement of the claimant. In reaching its conclusion the tribunal had regard to the dictum of Neill LJ in the case of Port of London Authority v Payne [1994] IRLR 9, in regard to practicability, that the tribunal should, in reaching its conclusion 'give due weight to the commercial judgement of the management' unless they were disbelieved:-

"The standard must not be set too high. The employer cannot be expected to explore every possible avenue which ingenuity might suggest. The employer does not have to show that reinstatement or re-engagement was impossible. It is a matter of what is practicable in the circumstances of the employer's business at the relevant time."

7. The tribunal then considered, as required by Article 150(3)(c) of the Order, whether, where the claimant had caused or contributed to some extent to the dismissal, it would be just to order his/her re-engagement, and if so, on what terms. The tribunal did not hear detailed evidence on the circumstances of the claimant's dismissal. Nevertheless, having been referred to the Notes of the Internal Appeal Hearing of June 1999 and its conclusions, and to the determination in February 2004 of the Independent Appeals Committee appointed by the Labour Relations Agency, the tribunal was satisfied that there was evidence of contributory fault on the claimant's part in respect of her own dismissal.
8. Having concluded that the options of reinstatement and re-engagement were impracticable, and having found that there was evidence that the claimant had contributed to her dismissal, the tribunal in the exercise of its discretion decided that it would not be just to make an order of re-engagement.
9. The tribunal will now reconvene the remedies hearing to consider the question of a compensatory award.

Chairman:

Date and place of hearing: 12 – 13 May 2005 and 23 June 2005, Belfast

Date decision recorded in register and issued to parties: