MacKenzie v The University of Cambridge (Rev 1)

An employment tribunal’s order for reinstatement or re-engagement under Part X of the Employment Rights Act 1996 does not create an absolute, specifically enforceable right to employment. Sections 115 and 117 must be read together. The employer must either comply with the order or incur the statutory compensation and additional award provided by section 117. Those are the consequences intended for non-compliance. The unfair-dismissal scheme is self-contained and remains within the employment tribunal’s jurisdiction, subject to express statutory enforcement of monetary awards. The ordinary courts therefore have no power to grant substantive specific enforcement of a re-engagement order. Convention authorities concerning enforcement of domestic reinstatement orders do not alter that construction where the domestic order was intended to operate through compensation.

Dr Catherine MacKenzie was dismissed by the University of Cambridge and succeeded in an unfair-dismissal claim. The employment tribunal made an order for her re-engagement under sections 113 and 115 of the Employment Rights Act 1996, but the University declined to re-engage her and paid the maximum statutory sum under section 117.

Morris J and Jay J refused permission to apply for judicial review, holding that the statutory remedies were exclusive. Floyd LJ later granted permission and directed that the application be retained in the Court of Appeal. The central issue was whether the High Court could specifically enforce the tribunal’s re-engagement order.

1. Disposition. The application for judicial review was dismissed unanimously. The order made under section 115 of the Employment Rights Act 1996 did not give Dr MacKenzie an absolute right to be re-engaged.
2. Sections 115 and 117 had to be construed as a coherent statutory scheme. A re-engagement order required the employer either to re-engage the employee or to become liable for the awards specified by section 117(3). The order was not intended to impose an absolute and indefeasible obligation capable of specific enforcement.
3. The unfair-dismissal regime was intended to be self-contained and subject to the exclusive jurisdiction of the employment tribunal. Section 15(1) of the Employment Tribunals Act 1996 expressly permitted monetary awards to be recovered as County Court orders, but contained no equivalent power to enable the County Court or High Court to grant substantive specific enforcement. Such enforcement would require the High Court to revisit matters within the tribunal’s jurisdiction, including the compliance date and possibly other terms.
4. The awards under section 117(3), including the ordinary compensatory award and the additional award, were alternatives to actual reinstatement or re-engagement. They were not additional remedies available alongside a High Court order for specific performance. The statutory scheme therefore did not provide both the re-engagement and the statutory awards.
5. The general reluctance of the law to compel continuation of employment relationships supported that construction. The label order for re-engagement could not determine its legal effect; the substance of sections 115 and 117 did so. O’Laoire v Jackel International Ltd [1990] ICR 197 and Mabirizi v National Hospital for Nervous Diseases [1990] ICR 281 strongly supported the orthodox understanding of the scheme.
6. The Convention arguments failed because the necessary premise of the Strasbourg authorities was absent. Those authorities concerned domestic orders intended to confer an enforceable right to actual reinstatement. The order here was intended to operate through the statutory remedies in section 117. No Convention provision required an employee to have a right to actual reinstatement where domestic law provided a pecuniary remedy.

• Court of Appeal (Civil Division) — dismissed the application for judicial review and upheld the statutory interpretation of the re-engagement scheme.
• High Court of Justice, Queen’s Bench Division (Administrative Court) — Morris J and Jay J refused permission to apply for judicial review.
• Permission stage — Floyd LJ granted permission and directed that the application be retained in the Court of Appeal.