Employment Rights Act 1996, section 116

Choice of order and its terms

Part X Unfair dismissal

(1)In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account—

(a)whether the complainant wishes to be reinstated,

(b)whether it is practicable for the employer to comply with an order for reinstatement, and

(c)where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.

(2)If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms.

(3)In so doing the tribunal shall take into account—

(a)any wish expressed by the complainant as to the nature of the order to be made,

(b)whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and

(c)where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms.

(4)Except in a case where the tribunal takes into account contributory fault under subsection (3)(c) it shall, if it orders re-engagement, do so on terms which are, so far as is reasonably practicable, as favourable as an order for reinstatement.

(5)Where in any case an employer has engaged a permanent replacement for a dismissed employee, the tribunal shall not take that fact into account in determining, for the purposes of subsection (1)(b) or (3)(b), whether it is practicable to comply with an order for reinstatement or re-engagement.

(6)Subsection (5) does not apply where the employer shows—

(a)that it was not practicable for him to arrange for the dismissed employee’s work to be done without engaging a permanent replacement, or

(b)that—

(i)he engaged the replacement after the lapse of a reasonable period, without having heard from the dismissed employee that he wished to be reinstated or re-engaged, and

(ii)when the employer engaged the replacement it was no longer reasonable for him to arrange for the dismissed employee’s work to be done except by a permanent replacement.

Definitions used in section 116 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
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
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 116 34

McBride v Scottish Police Authority

[2016] UKSC 27 · 15 June 2016Interprets

When considering reinstatement, the tribunal must take account of the complainant’s wishes, practicability of compliance and, where the complainant contributed to dismissal, whether reinstatement would be just. Practicability at this stage is assessed prospectively and provisionally. (see paras [36]-[38]) The tribunal must consider similar matters when deciding whether to order re-engagement: the complainant’s wishes, practicability and the justice of the order where the complainant contributed to dismissal. (see para [36])

Kelly v PGA European Tour

[2021] EWCA Civ 559 · 19 April 2021Limits

Section 116 governs the order in which reinstatement and re-engagement are considered and identifies practicability and other relevant considerations. The tribunal’s discretion to order re-engagement remains subject to its assessment of the statutory considerations, including practicability. The tribunal must take account of whether it is practicable for the employer or relevant associated employer to comply with an order for re-engagement. Practicability requires the order to be capable of successful implementation. Where the claimant caused or contributed to the dismissal, the tribunal must consider whether re-engagement would be just. The court noted that the secret recordings did not engage this provision because the employer was unaware of them at dismissal. The tribunal must disregard the fact that the employer engaged a permanent replacement for the dismissed claimant. That rule does not require disregard of other posts that became vacant but were filled before the remedies hearing. The qualifications in section 116(6) limit the statutory disregard of a permanent replacement, including circumstances in which the claimant’s work could not practicably be done without such a replacement. The court treated section 116(6)(a) as an example of a qualification where it was not practicable for the dismissed claimant’s work to be done without a permanent replacement. The reference to the dismissed employee in section 116(6)(b)(i) means the claimant seeking reinstatement or re-engagement, not another employee whose post has been filled.

Taiwo v Department for Education

[2015] EWCA Civ 808 · 24 June 2015

The Tribunal applied section 116(1) in refusing reinstatement or re-engagement where relations had fundamentally broken down and compliance was impracticable, taking the Applicant’s contribution to dismissal into account. (see paras [7]-[9])

14 more judgments, and what each says about section 116, are in the case-law panel in the full Act.