Oasis Community Learning v Wolff

An employment tribunal must consider reinstatement and re-engagement before compensation where an unfairly dismissed employee seeks either remedy. Its discretion remains general, subject to the specified factors in section 116 of the Employment Rights Act 1996.

Practicability requires a fact-sensitive assessment of whether re-engagement can succeed. Serious allegations made during a dispute do not automatically make re-engagement impracticable. A tribunal may properly find re-engagement practicable where it is at a separate workplace with new colleagues and suitable terms address the employer’s legitimate concerns.

The claimant, a teacher employed by Oasis Community Learning, was dismissed following disciplinary proceedings. Oasis accepted before the Employment Tribunal that the dismissal was unfair.

At a remedy hearing, the Tribunal ordered re-engagement under section 115 of the Employment Rights Act 1996 at a different school in Croydon. It imposed terms intended to end the parties’ existing disputes and regulate future conduct.

Oasis appealed against re-engagement, contending that the claimant’s allegations against its staff made the order impracticable. The claimant cross-appealed only on the salary fixed by the order, having abandoned his challenge seeking reinstatement. The central issue was whether the Tribunal had erred in finding re-engagement practicable.

1. Both appeals were dismissed. The Employment Tribunal was entitled to order the claimant’s re-engagement at a different school.

2. Sections 112 and 113 of the Employment Rights Act 1996 require a tribunal first to consider reinstatement or re-engagement when sought. They do not create an inflexible rule that one of those remedies must be ordered unless impracticability is proved. The discretion is general, although section 116 requires the tribunal to consider specified matters. On the facts, practicability was the only material issue, so the Tribunal’s approach caused no material misdirection.

3. The Tribunal had made a permissible factual assessment that the claimant’s correspondence and allegations had not made re-engagement impracticable. Re-engagement was at a school about 200 miles from his former workplace, with new colleagues and no continuing damaged working relationships. The claimant’s complaints chiefly concerned two HR individuals, and the evidence did not require a conclusion that either would need to work with him at the new school.

4. The Tribunal was entitled to regard the claimant’s conduct in contentious litigation as distinct from his likely conduct in future employment. It could reasonably accept that he could begin afresh and reinforce that conclusion through carefully framed contractual terms. The fact that such terms were prudent did not compel the conclusion that re-engagement would fail.

5. The Tribunal was not required to make detailed findings on every late-raised allegation about teaching observations. Those matters were not central to practicability and were not supported by evidence from a witness with direct knowledge.

6. The claimant had accepted the salary at the remedy hearing and had not advanced his travel and accommodation costs. His later appeal against the salary therefore failed.

• Employment Appeal Tribunal: Oasis’s appeal against the re-engagement order and the claimant’s appeal against the prescribed salary were dismissed.
• Employment Tribunal, Hull: Oasis accepted that the claimant had been unfairly dismissed. At the remedy hearing, the Tribunal ordered re-engagement under section 115 of the Employment Rights Act 1996.