Reinstatement - timing of practicability

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

Should a tribunal consider the practicability of a re-engagement order for an unfairly dismissed Claimant based on the situation when the order takes effect?

Yes, says the EAT in Rembiszewski v Atkins Ltd.

The employment tribunal held that the Claimant architect had been unfairly made redundant, but declined to order re-engagement, basing its decision at a remedy hearing on the situation at the time of the liability hearing. The Claimant appealed.

The EAT held that the tribunal had erred in law, and that the practicability of reinstatement or re-engagement is to be judged as of the date it is to take effect, which, in practice, is likely to require considering the matter at the conclusion of a remedy hearing. The case was remitted for reconsideration.

The Respondent successfully cross-appealed to enable it to argue that the Claimant's alleged lack of trust and confidence in it was a relevant factor in considering the practicability of ordering re-employment.

The judgment contains a useful discussion of the law on reinstatement and re-engagement.