Wolff v Oasis Community Learning

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 factors specified by statute. Where practicability is the only live issue, it may approach re-engagement on the basis that an order should be made unless re-engagement is impracticable.

Hostile litigation and serious allegations may make re-engagement impracticable. That is a fact-sensitive assessment. Allegations concerning staff at the former workplace do not necessarily prevent re-engagement at a different workplace with new colleagues.

The claimant, a teacher, was unfairly dismissed by Oasis Community Learning after disciplinary proceedings concerning his treatment of pupils. At the remedy hearing, the Employment Tribunal ordered his re-engagement at a different Oasis school, Shirley Park Academy in Croydon, under section 115 of the Employment Rights Act 1996.

Oasis appealed against the order, contending that the claimant's allegations and correspondence concerning Oasis and its human-resources staff made re-engagement impracticable. The claimant cross-appealed only against the salary fixed by the order, having abandoned his challenge to the refusal of reinstatement. The central issue was whether the Tribunal had erred in concluding that re-engagement at a different school was practicable.

1. Both appeals were dismissed. The Tribunal's re-engagement order stood, and the claimant could not challenge the salary after accepting the rate at the remedy hearing without advancing his present objections.

2. The Tribunal had misstated the statutory position in suggesting that reinstatement or re-engagement must be ordered unless impracticability were shown. Sections 112(3) and 113 of the Employment Rights Act 1996 confer a general discretion, although section 116 requires specified matters to be considered. The error was not material. Practicability was the only relevant disputed factor, so the Tribunal could properly approach the case on the basis that re-engagement ought to be ordered unless shown impracticable.

3. Conduct during a successful unfair-dismissal claim can so damage working relationships that reinstatement or re-engagement is impracticable. The Tribunal did not deny that principle. It was entitled, however, to find on the evidence that the claimant's correspondence and allegations did not have that effect here.

4. The proposed employment was at a school about 200 miles from the claimant's former school, with wholly new colleagues. Allegations against colleagues or managers at one workplace do not necessarily affect working relationships at another. The claimant's relevant complaints were principally against two human-resources individuals, one of whom had left and the other of whom need not deal with him. The Tribunal was entitled to assess that these circumstances did not make the new engagement impracticable.

5. The Tribunal had recognised the risk that the claimant might cause further difficulties. Its conclusion that he could begin afresh, reinforced by agreed contractual terms requiring proper conduct, was a factual assessment open to it and was not perverse. The Tribunal was also not required to give detailed reasons on every matter raised orally which was not central to practicability.

6. The EAT expressed a provisional view that elaborate terms attached to re-engagement orders are unusual and should be used cautiously, but need not be outside the Tribunal's powers. No general conclusion on the frequency of re-engagement orders followed: each case turns on its facts.

• Employment Appeal Tribunal: Oasis's appeal against the re-engagement order and the claimant's appeal concerning salary were dismissed: [2013] UKEAT 0365_12_1705.
• Employment Tribunal: The claimant's dismissal was agreed to be unfair. At the remedy hearing, the Tribunal ordered re-engagement at Shirley Park Academy under section 115 of the Employment Rights Act 1996.