South Tyneside Healthcare NHS Trust v Awotona

Where an order for reinstatement is not obeyed, compensation for unfair dismissal must be calculated under the ordinary statutory regime. The tribunal may reconsider losses between dismissal and the date fixed for reinstatement. The earlier amount specified when reinstatement was ordered is not revoked and remains relevant when applying the statutory cap. Its function is limited to enabling the compensatory and additional awards to reflect that specified amount where necessary. It does not replace or dictate the ordinary assessment of compensation.

An employment tribunal found that Dr Victoria Awotona had been unfairly dismissed and ordered her reinstatement. Under section 114(2) of the Employment Rights Act 1996, it specified an amount for benefits lost between dismissal and the date fixed for reinstatement. The employer failed to reinstate her.

On the further remedies hearing, the tribunal allowed evidence about additional losses. The Employment Appeal Tribunal held that losses already covered by the section 114(2) specification could not be reopened. The central issue before the Court of Appeal was whether that restriction was correct.

1. Appeal allowed. The Employment Appeal Tribunal had applied the wrong approach to compensation following non-compliance with an order for reinstatement.
2. The exercise under section 114(2) of the Employment Rights Act 1996 is based on the employee being reinstated. It requires the tribunal to specify benefits which the employee might reasonably have expected to receive but for the dismissal, for the period up to reinstatement.
3. Where reinstatement does not occur, section 117(3)(a) requires compensation for unfair dismissal to be calculated under the ordinary provisions in sections 118 to 127A, including the separate assessment under section 123. The tribunal may reconsider lost benefits for the period between dismissal and the date originally fixed for reinstatement. It need not revoke the earlier calculation.
4. The tribunal has no power simply to revoke the amount specified under section 114(2), except on a review. That amount remains relevant despite the failure to reinstate.
5. Section 124(4) permits the statutory limit on the compensatory award to be exceeded only to the extent necessary for the compensatory and additional awards together to reflect the amount specified under section 114(2)(a) or section 115(2)(d). It does not replace or dictate the ordinary calculation of compensation.
6. The appeal was allowed with costs summarily assessed at £16,000.

• Court of Appeal (Civil Division) allowed the appeal from the Employment Appeal Tribunal and ordered costs of £16,000, summarily assessed.
• Employment Appeal Tribunal, on 29 June 2004, allowed the Trust’s appeal against the Employment Tribunal’s decision and held that losses already covered by the section 114(2) specification could not be reopened.
• Employment Tribunal found unfair dismissal, made an order for reinstatement and specified an amount under section 114(2).