Employment tribunals have a wide discretion when considering whether to make an order for reinstatement, but they are required by Section 116 of the Employment Rights Act 1996 to take into account the following:
- whether the complainant wishes to be reinstated;
- whether it is practicable for the employer to comply with an order for reinstatement; and
- where the complainant caused or contributed to his dismissal whether it would be just to order his reinstatement.
In the recent case of Central & NW London NHS Trust v Abimbola, an employment tribunal made an order for reinstatement and the respondent employer appealed to the EAT. The EAT agreed with the employer that tribunal had failed to take into account relevant factors when considering whether to make a reinstatement order. These relevant factors included the tribunal's finding that the Claimant was evasive and had been dishonest about his loss of earnings when giving evidence at the remedies hearing and the existence of earlier allegations of misconduct (which were unproven) prior to the Claimant's dismissal and allowed the appeal.