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Reinstatement – Remedy on the Rise?

The Unfair Dismissals Acts and Employment Equality Acts provide for three different remedies but, for the most part, everybody concentrates on only one: compensation. There are good reasons for that, as it is the most common and the least problematic remedy that can be awarded under that legislation. From a financial perspective, it returns the employee to the position they would have been in had they not been dismissed, in that it refunds to them their loss of income. In that context, and particularly with regard to the Unfair Dismissals Acts, the questions that are asked are measurable/quantifiable: what losses has the employee suffered in terms of actual income?; have they returned to work?; have they attempted and/or been in a position to mitigate their losses, etc?

Even in respect of the Employment Equality Acts, where compensation is not limited to actual loss, these questions are asked.

In providing for this remedy, both sets of Acts envisage the parties all moving on from any involvement with one another and there are obvious practical reasons why that can be a good outcome, for example (as is often the case) where the parties have lost all trust or confidence in one another.

The other two remedies are of no less importance, notwithstanding that they are less common. The Acts also envisage situations where the parties should actually be able to work together again and/or where the employer has acted so irrationally that the employee should (i) not be in any way prejudiced by it, ie that they should be returned to the position they were in or (ii) should only be prejudiced to the extent that they lose some service but otherwise should be reemployed.

From time to time, these alternative remedies, respectively reinstatement and reengagement, are awarded or at least very seriously considered by the Workplace Relations Commission/Labour Court. Arising from their rarity, the practical difficulties implicit in their implementation, and what are usually fairly interesting facts leading to their consideration/imposition, they often attract media attention. Recently, some cases involving reinstatement and/or reengagement have attracted such attention and one at least has raised some fairly novel points.

In Thomas Doolin v Eir Business Eircom Limited ADJ-00045261, the complainant brought a discrimination complaint to the WRC under the Employment Equality Acts, arising from his termination by reason of retirement. The WRC found that the decision of the employer to refuse to allow the complainant to work beyond 65 was not objectively justified and ordered reinstatement of the complainant to his previous job effective from the imposed retirement date. The reinstatement order meant the complainant was entitled to be paid his salary for the time he was out of work between termination on 1 July 2023 and reinstatement on 30 November 2023. That is the key factor of reinstatement employers must bear in mind – it is not only that they must reemploy the terminated employee, but must also pay backpay as though the termination never took place. It can be a bitter pill to swallow.

By contrast, reengagement does not necessarily require backpay from the date of termination, or even a return specifically to the same role. However, it does require the employer to put the dismissed employee back on payroll on an ongoing basis so, either way, it requires the employer to make significant decisions.

In Linda O’Shea Farren v Contemporary Music Centre CLG ADJ-00044000, the complaint fought for reinstatement but it was not ultimately awarded, despite careful consideration by the WRC. The respondent resisted reinstatement on the basis that relations between the complainant and existing employees were not good; the size of the respondent organisation did not facilitate it; and the respondent’s restructuring after the complainant’s dismissal meant that the complainant’s position no longer exists. Ultimately, the WRC made their decision to refuse reinstatement on the basis of “the attitude of the parties towards each other”, ie the adjudication officer read the room and saw that the parties simply could not work together going forward and/or “that reinstatement is neither in the interests of the complainant or appropriate”.

The WRC noted that the complainant did not seek re-engagement with the respondent in an alternative position.

In the most notable case, An Bord Banistiochda Gaelscoil Moshiolog v The Labour Court [2023] IEHC 497, the High Court affirmed full reinstatement of an employee who had been dismissed in November 2015. This followed a decision to reengage him in 2018 and an even more favourable decision of the Labour Court in 2022. This case is particular to its facts to an extent, in circumstances where at least some of the delays were caused by the Covid-19 pandemic, and so it is rare that an employer will be obliged to pay backpay to this level, but it is a salutary lesson for employers. Reinstatement and/or reengagement can happen and so can delays. No employer is immune from statutory remedies.

Most employers will understandably believe that an employee in this position will not seek to be reinstated/reengaged, that they will see the writing on the wall in terms of the relationship between the parties. That is usually the case but, as the above caselaw shows, not always. Sometimes an employee is going to look to get back in, whether because they genuinely wish to return to work or because they consider that will give them a strategic edge in settlement negotiations. It is important for employers to remember that the WRC has full discretion to make that award.

Another recent and high-profile example of an employee seeking to be restored to their position, of which Star Wars fans in particular will have taken note, is the Gina Carano case against Disney. Carano, whose litigation is being funded by Elon Musk, is seeking to return to the cast of the tv show, The Mandalorian. That litigation may go on for some years, during which the show itself may come to an end, but watch this space…