MacKenzie v The University of Cambridge (Rev 1)

The Court of Appeal considered whether an employment tribunal order for re-engagement under sections 113–115 of the Employment Rights Act 1996 gives rise to an enforceable right in the ordinary civil courts or whether non-compliance is addressed exclusively by the statutory monetary remedies in section 117. The tribunal had ordered re-engagement and specified back pay but the employer declined to re-engage and paid the statutory maximum monetary amount under the scheme.

The court held that sections 115 and 117 must be read together as a self-contained scheme: an order for re-engagement does not create an absolute, specifically enforceable right to reinstatement or re-engagement in the ordinary courts, but instead exposes the employer to the compensatory and additional awards set out in section 117 where the order is not complied with. The exclusivity of the tribunal scheme and the statutory enforcement route for monetary awards reinforced that conclusion. Strasbourg authorities relied on by the claimant were inapplicable because they assumed a domestic power to order reinstatement which is absent here.

Background and parties. The appellant was dismissed from her post as a lecturer in law and the employment tribunal found unfair dismissal, the University conceding liability. The appellant chose to seek re-engagement rather than a compensatory award and the tribunal ordered re-engagement under section 115, specifying terms and a compliance date and calculating substantial back pay in the Reasons. The University refused to re-engage and paid the maximum monetary sum which it viewed as the statutory remedy.

Procedural history. The claimant issued judicial review proceedings in the Administrative Court challenging the University’s refusal to comply with the tribunal re-engagement order. Permission to apply for judicial review was refused on the papers by Morris J and again on renewal before Jay J. Floyd LJ later granted permission and directed retention in the Court of Appeal under CPR 52.8(6).

Relief sought and issues. The claimant sought quashing of the University’s decision not to comply and a declaration that the refusal was unlawful; the evident aim was to require specific compliance with the tribunal order. The principal legal issue was whether rights arising under Part X of the Employment Rights Act 1996 (in particular orders under sections 113–115) can be enforced by the High Court (or ordinary courts) or whether Parliament intended non-compliance to be remedied exclusively by the monetary awards provided in section 117. Secondary issues included reliance on the Human Rights Act 1998 and Convention rights (articles 6 and 13 and article 1 of Protocol 1) to support access to an effective remedy.

Court’s reasoning. The court reasoned that sections 115 and 117 form an integrated statutory scheme: an order for re-engagement does not create an indefeasible, court-enforceable obligation to re-engage; instead section 117 prescribes the consequences of non-compliance (compensatory award and an additional award of 26–52 weeks’ pay unless the employer shows non-practicability). Allowing the High Court to make substantive re-engagement orders would undermine the exclusive jurisdictional scheme of employment tribunals and require the ordinary courts to exercise functions Parliament placed within the tribunal framework. The mandatory language of section 117 and the existence of limited interim relief mechanisms under sections 127–132 further support the conclusion that Parliament did not intend specific enforcement by ordinary courts. Strasbourg authorities cited by the claimant presupposed a domestic power to order reinstatement; they therefore did not require a different domestic construction. Prior domestic authorities (O’Laoire and Mabirizi) were consistent with this construction. The Human Rights Act arguments were unnecessary to decide the case.

Result. The claimant’s application for judicial review was dismissed: the statutory monetary remedies under section 117 are the exclusive statutory response to non-compliance with a section 113 order and do not permit enforcement of re-engagement by the ordinary civil courts.

Dismissed. The Court held that an employment tribunal order for re-engagement under sections 113–115 of the Employment Rights Act 1996 does not create an absolute, court-enforceable right to reinstatement or re-engagement in the ordinary courts; instead non-compliance is dealt with by the statutory monetary remedies in section 117. The tribunal/tribunal-based scheme is exclusive and Parliament did not intend courts to order specific performance of such employment orders.

Employment tribunal found unfair dismissal and made an order for re-engagement (formal judgment dated 8 December 2015). The University refused to re-engage and paid the statutory monetary equivalent. Permission to apply for judicial review was refused on the papers by Morris J (26 May 2017) and on renewal by Jay J (10 October 2017). Floyd LJ granted permission on 17 April 2018 and directed retention in the Court of Appeal under CPR 52.8(6); the Court of Appeal dismissed the claimant's application on 20 June 2019 ([2019] EWCA Civ 1060).