A sword of Damocles that disgruntled former employees sometimes hang over the heads of their old employers is the threat that, not only will they sue, but they will also seek an order for reinstatement or re-engagement; essentially, an order that the employer will have to re-employ the employee in the same or a comparable role. Although these orders are extremely rare, the threat may be a powerful incentive in some cases to do a deal where the prospect of re-employing is too unpalatable.
If a tribunal orders re-employment, can the unsuccessful employer just ignore the order, or only partly comply with it?
If an employer chooses not to comply, it will not escape scot-free, as it will have to pay an ‘additional award’, unless it can show it was not practicable to comply with the order. This is a not inconsiderable sum of between 26 and 52 weeks’ pay. But can the employee also force compliance by way of an injunction, effectively making the employer take them back?
Not according to a recent judgment of the Court of Appeal (Mackenzie v University of Cambridge) in which a former lecturer tried to get the university to re-engage her, as had been ordered by the employment tribunal. The court decided that the employer had a straight choice; either re-engage Dr Mackenzie, or pay her an additional award. It was not open to the court to order the university to re-engage her.
The university only had to pay marginally more as a result of not complying with the re-engagement order than it owed in back pay. Dr Mackenzie may well be wondering what the value of the re-engagement order was. Ultimately, an employer cannot be forced to employ someone it does not want to employ.