Rembiszewski v Atkins Limited

Where an Employment Tribunal receives further written submissions after a remedies hearing, the practicability of reinstatement or re-engagement must be assessed when the proposed order would take effect. In practice, that is when the Tribunal has received all material relevant to the remedy, unless unusual circumstances require another date.

An agency worker performing comparable work may provide a possible basis for re-engagement, even though the special rule concerning a permanent replacement does not apply to an agency worker. A claimant’s lack of confidence in the employer may also be relevant to practicability. An employer seeking a Polkey reduction must adduce evidence supporting the asserted outcome; a tribunal need not speculate about an unresolved tie-break.

The Claimant, an architect, was dismissed for redundancy. The Employment Tribunal found the dismissal unfair because of flaws in the redundancy scoring and appeal process. At the remedies stage it declined to order re-engagement, finding that no suitable role had been identified, and awarded compensation without a Polkey reduction.

The Claimant appealed the refusal of re-engagement. The Respondent cross-appealed the refusal of a Polkey deduction and, conditionally, sought to rely on the Claimant’s alleged lack of trust and confidence in it as making re-engagement impracticable. The central issue was the date at which practicability had to be assessed where post-hearing written material had been submitted.

1. Appeal allowed. The Employment Tribunal’s refusal to make a re-engagement order was set aside and the issue was remitted. Practicability is assessed when reinstatement or re-engagement would take effect. Although this will usually mean the remedies hearing date, where the Tribunal has permitted or requested post-hearing submissions it must consider the position after receiving that material.

2. The Tribunal had relied on evidence from the October 2010 hearing but had not addressed the later material indicating that an agency architect remained working for the Respondent in January 2011. That was an error of law which undermined its conclusion that re-engagement was impracticable.

3. Work performed by the agency architect was capable of being employment comparable with, or otherwise suitable to, the Claimant’s former employment under Employment Rights Act 1996, section 115(1). Section 116(5) did not apply if she was an agency worker rather than the Respondent’s employee. Her engagement could nevertheless be relevant to whether re-engagement was practicable.

4. The Respondent could advance on remission its argument that the Claimant’s alleged lack of confidence in it made re-engagement impracticable. Such a lack of confidence was capable of being relevant both to practicability and to the exercise of discretion.

5. The unconditional Polkey cross-appeal was dismissed. The Tribunal was entitled to find that corrected scores would leave three employees tied for two redundancies. The Respondent produced no evidence explaining the tie-break. It was for the Respondent seeking a reduction to provide evidence supporting it; the Tribunal was not required to infer a 66% chance of dismissal.

• Employment Appeal Tribunal: allowed the Claimant’s appeal against the refusal of re-engagement, set that decision aside, and remitted the remedy issue.
• Employment Tribunal: held the redundancy dismissal unfair in a liability judgment sent on 13 September 2010. In its remedies judgment sent on 14 April 2011, it declined re-engagement and awarded £25,403 without a Polkey reduction.