Employment Rights Act 1996, section 115

Order for re-engagement

Part X Unfair dismissal

(1)An order for re-engagement is an order, on such terms as the tribunal may decide, that the complainant be engaged by the employer, or by a successor of the employer or by an associated employer, in employment comparable to that from which he was dismissed or other suitable employment.

(2)On making an order for re-engagement the tribunal shall specify the terms on which re-engagement is to take place, including—

(a)the identity of the employer,

(b)the nature of the employment,

(c)the remuneration for the employment,

(d)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 re-engagement,

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

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

(3)In calculating for the purposes of subsection (2)(d) 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 re-engagement 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.

F791 (4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Definitions used in section 115 4

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
successor

“successor”, in relation to the employer of an employee, means (subject to subsection (2)) a person who in consequence of a change occurring (whether by virtue of a sale or other disposition or by operation of law) in the ownership of the undertaking, or of the part of the undertaking, for the purposes of which the employee was employed, has become the owner of the undertaking or part,

Defined in s.235(1) · 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 115 22

Kelly v PGA European Tour

[2021] EWCA Civ 559 · 19 April 2021Defines

Section 115 provides the statutory basis for an order of re-engagement in comparable or other suitable employment. Re-engagement means engagement by the employer, a successor or an associated employer in employment comparable to the former employment or other suitable employment. An order must specify the terms on which re-engagement is to take place. The tribunal must specify the nature of the employment in the re-engagement order. The tribunal must specify the date by which the re-engagement order must be complied with.

MacKenzie v The University of Cambridge (Rev 1)

[2019] EWCA Civ 1060 · 20 June 2019Interprets

Interprets an order for re-engagement, read with section 117, as not creating an absolute, specifically enforceable right to employment. (see paras [11], [20]-[25]) Interprets the statutory order for re-engagement in its context, holding that its wording does not create an indefeasible right to actual employment. (see paras [11], [20], [25]) Cited to explain that the tribunal must specify the terms on which re-engagement is to take place. It did not create a separate basis for specific enforcement. (see para [11]) Applies to the inclusion of arrears of pay and other benefits in the terms of a re-engagement order. The provision did not alter the statutory consequences of non-compliance. (see paras [11], [26])

Hazel & Anor v The Manchester College

[2014] EWCA Civ 72 · 5 February 2014Interprets

Applies the re-engagement power to permit prospective engagement on terms determined by the tribunal, including remuneration and restoration of benefits. (see paras [30], [41]-[42]) Interprets re-engagement as an order that the complainant be engaged on terms decided by the tribunal, so existing employment under replacement terms does not create a jurisdictional bar. (see para [41]) Cited only. Cited only. Cited only. Cited only. Confirms that arrears of pay and other lost benefits are dealt with as part of the re-engagement order for the period between dismissal and re-engagement. (see paras [30], [41]) Cited only. Cited only. Cited only. Cited only. Cited only.

3 more judgments, and what each says about section 115, are in the case-law panel in the full Act.

Amendments and notes

1 notes from legislation.gov.uk

Amendments

  1. F791S. 115(4) repealed (15.12.1999) by 1999 c. 26, ss. 9, 44, Sch. 4 Pt. III para. 21, 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)