Employment Rights Act 1996, section 114

Order for reinstatement

Part X Unfair dismissal

(1)An order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed.

(2)On making an order for reinstatement the tribunal shall specify—

(a)any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of reinstatement,

(b)any rights and privileges (including seniority and pension rights) which must be restored to the employee, and

(c)the date by which the order must be complied with.

(3)If the complainant would have benefited from an improvement in his terms and conditions of employment had he not been dismissed, an order for reinstatement shall require him to be treated as if he had benefited from that improvement from the date on which he would have done so but for being dismissed.

(4)In calculating for the purposes of subsection (2)(a) any amount payable by the employer, the tribunal shall take into account, so as to reduce the employer’s liability, any sums received by the complainant in respect of the period between the date of termination of employment and the date of reinstatement by way of—

(a)wages in lieu of notice or ex gratia payments paid by the employer, or

(b)remuneration paid in respect of employment with another employer,

and such other benefits as the tribunal thinks appropriate in the circumstances.

F790 (5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Definitions used in section 114 3

employer

(4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

Defined in s.230(4) · see it in the full Act

(6) This section has effect subject to sections 43K , 47B(3) and 49B(10) ; and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “worker”, “worker’s contract” and, in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by section 43K.

Defined in s.230(6) · see it in the full Act
employment

(5) In this Act “employment”—

(a)in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and

(b)in relation to a worker, means employment under his contract;

Defined in s.230(5) · see it in the full Act

(6) This section has effect subject to sections 43K , 47B(3) and 49B(10) ; and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “worker”, “worker’s contract” and, in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by section 43K.

Defined in s.230(6) · see it in the full Act
employee

(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

Defined in s.230(1) · see it in the full Act

Cases considering section 114 28

McBride v Scottish Police Authority

[2016] UKSC 27 · 15 June 2016Interprets

Reinstatement requires the employer to treat the complainant in all respects as if dismissal had not occurred. This restores contractual rights, terms, conditions and privileges, but does not require recreation of every factual workplace condition. (see paras [33]-[35]; [39]-[44]) The case was remitted so that the tribunal could consider variation of the specified matters in its reinstatement order because of the time elapsed. (see para [53])

South Tyneside Healthcare NHS Trust v Awotona

[2005] EWCA Civ 217 · 15 February 2005Interprets

Interprets the amount specified when reinstatement is ordered as a pre-reinstatement calculation based on benefits the employee might reasonably have expected to receive but for dismissal. The calculation is separate from the later compensation assessment after non-compliance (see paras [17]; [20]). Applies the provision to benefits, including arrears of pay, for the period between termination and reinstatement. The specified amount is not binding on the later compensation assessment but remains relevant to the statutory limit (see paras [17]; [20]; [21]).

HM Inspector of Taxes v Clayton

[2004] EWCA Civ 1657 · 7 December 2004Limits

Cited as the statutory basis for the reinstatement order. (see paras. [6], [14]) Limits the statutory direction to an employer to treat the complainant as if he had not been dismissed; it does not override the actual facts for tax characterisation. (see paras. [31]-[33]) Applies to remuneration and benefits lost between termination and reinstatement; the consent order separately restored ECUA-related remuneration under this provision. (see paras. [6], [14], [33]) Cited only. Cited only.

8 more judgments, and what each says about section 114, are in the case-law panel in the full Act.

Amendments and notes

1 notes from legislation.gov.uk

Amendments

  1. F790S. 114(5) repealed (15.12.1999) by 1999 c. 26, ss. 9, 44, Sch. 4 Pt. III para. 20, Sch. 9(2); S.I. 1999/2830, art. 2(2)(3), Sch. 1 Pt. II, Sch. 2 Pt. II (with Sch. 3 paras. 10, 11)