British Airways plc v Valencia

Under the Employment Rights Act 1996, a tribunal must consider reinstatement before re-engagement. Re-engagement is more flexible, but it remains a separate remedy. Where contributory conduct is established, the tribunal must first decide whether re-engagement would be just. Only then may it decide the terms, including any reduction in arrears. A tribunal cannot refuse reinstatement as unjust and then order the employee back into the same role on the same terms by describing that order as re-engagement. In such circumstances, the same conduct may make re-engagement unjust.

The respondent appealed against a remedy judgment of the Employment Tribunal following a finding that the claimant, a cabin crew member, had been unfairly dismissed. The tribunal found that the claimant’s conduct contributed to the dismissal to a high degree, assessed at 80%, and concluded that a fair dismissal might have occurred in any event.

The tribunal found reinstatement practicable but unjust because of the contribution. It nevertheless ordered re-engagement as cabin crew on the same terms and conditions, making no award of arrears of pay. The central issue was whether that order was permissible under sections 113 to 116 of the Employment Rights Act 1996.

1. Appeal allowed. The re-engagement order was set aside. The case was remitted to the Employment Tribunal to deal with compensation only. The agreed notice-pay award was set aside and £4,737.04 substituted for £5,397.
2. Sections 113 to 116 of the Employment Rights Act 1996 create distinct remedies. Reinstatement requires the employer to treat the complainant in all respects as if dismissal had not occurred. Re-engagement permits employment comparable to the former employment or other suitable employment, potentially with a different role, employer, manager or remuneration.
3. The statutory sequence is mandatory. The tribunal must consider reinstatement first. Only if it decides not to reinstate may it consider re-engagement. Where contributory conduct is found, section 116(3)(c) requires two separate questions: first, whether re-engagement would be just; and, only if so, on what terms. The flexibility to reduce arrears cannot be used to avoid the first question.
4. The Tribunal had refused reinstatement because the claimant’s contributory conduct was substantial, but then ordered him to return to precisely the same role on the same terms. That was, in substance, reinstatement under another name and was contrary to the statutory scheme. Reducing arrears did not cure the error.
5. The Tribunal’s findings made the result inevitable. Since reinstatement was unjust for the claimant’s high degree of contribution, re-engagement on effectively identical terms was also unjust. Remission was therefore unnecessary.
6. The further ground concerning the December 2010 final written warning failed. A tribunal need not decide every point raised if it has addressed the central issues; on a fair reading, the warning had been considered.

• Employment Appeal Tribunal — allowed the appeal concerning re-engagement, set aside that order, substituted the agreed notice-pay figure, and remitted compensation issues to the Employment Tribunal.
• Employment Tribunal — found unfair dismissal, assessed contribution at 80%, applied a 50% Polkey reduction, refused reinstatement, but ordered re-engagement on the same terms.