Why is reinstatement after unfair dismissal so rare?

One of the options pursuant to an unfair dismissal claim is reinstatement or re-engagement of the claimant within the company. In the period 2011-2012, only 5 orders for reinstatement or re-engagement were given by employment tribunals.

Re-engagement might work well in a large limited company or plc, which has a number of separate and diversified business divisions, where the employee could return to work without causing too many ripples.

However in our experience claimants very rarely want to return to work for the same employer. In many cases the claimants who feel they have been unfairly dismissed will harbour feelings of mistrust and resentment towards their employer.

It is likely that whatever the decision of the tribunal, the employer will continue to believe they were in the right; to take the employee who was wronged them back into the fold would be unthinkable. The vast majority of employers will always fight reinstatement, but why? When most dismissals are “no-fault” dismissals, and a decision finding the employer was “unfair” only tends to happen where there was something irrational or improper about the sacking, it seems odd that employers are against it. Why won’t they put their hands up, say, “We got it wrong” and just take back the employee?

If we look back in time some thirty or forty years, before a tribunal-led unfair dismissal system was in place, many workplaces had internal procedures for resolving dismissal claims, and reinstatement rates were as high as 33%. Compare this with today’s employment tribunal figures and we see less than 1% of unfair dismissal cases result in reinstatement. The assumption is that this is connected to a shift in how companies and management hierarchies have changed over the decades, perhaps not for the better.

There is also often an argument that the employer is too small to allow re-engagement, particularly after a lengthy unfair dismissal process. How can a small business afford to keep a position open for an average of 3 to 6 months from the issuing of proceedings? Furthermore, perhaps in a company which consisted of say 20 people there would be too many ruffled feathers to take the employee back on.

However the Federation of Small Businesses report there are 29m workers, of which a small majority of 15m work in companies which have 250 people or more. If the “average” worker is employed by a company with 250 employees, one would have that that was sufficiently large enough to absorb a reinstatement without ruffling too many feathers.

Perhaps if the unfair dismissal process was a quicker one, with less apportioning of blame and brooding resentment, the employer might be more inclined to take the employee back on. Equally, if the claimant – in the current economic climate – knew how long it would take to find another salaried role of equal standing, responsibility and remuneration, they might think twice about going for the cash and err more on the side of trying to get their job back, no matter how uncomfortable that might be in the short-term (a few years on, and who will remember anyway?).

If you feel you have a claim for unfair dismissal – whether or not you would like to be reinstated, give us a call FREE on 0203 838 0781 for an informal discussion.