Dr Catherine Mackenzie v The Chancellor, Masters & Scholars of the University of Cambridge

JurisdictionEngland & Wales
JudgeLord Justice Underhill,Lady Justice Rafferty,Lord Justice Flaux
Judgment Date20 June 2019
Neutral Citation[2019] EWCA Civ 1060
Docket NumberCase No: C1/2017/2812
CourtCourt of Appeal (Civil Division)
Date20 June 2019

[2019] EWCA Civ 1060

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)

JAY J

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Underhill

(Vice-President of the Court of Appeal (Civil Division))

Lady Justice Rafferty

and

Lord Justice Flaux

Case No: C1/2017/2812

Between:
Dr Catherine Mackenzie
Appellant
and
The Chancellor, Masters & Scholars of the University of Cambridge
Respondent

Mr Aidan O'Neill QC (instructed by Sinclairs Law) for the Appellant

Mr Clive Sheldon QC (instructed by Shakespeare Martineau LLP) for the Respondent

Hearing date: 12 June 2019

Approved Judgment

Lord Justice Underhill

INTRODUCTION

1

This is the hearing of an application for judicial review, which has been retained in this Court under CPR 52.8 (6). The essential background can be summarised as follows.

(1) The Claimant was until her dismissal with effect from 31 December 2013 employed by the University of Cambridge as a lecturer in the Law Faculty.

(2) She brought proceedings in the employment tribunal claiming that she had been unfairly dismissed contrary to Part X of the Employment Rights Act 1996 (“the 1996 Act”). In the course of the hearing of that claim the University conceded liability.

(3) Under the statutory scheme governing remedies for unfair dismissal, of which I give more details below, the Claimant had a choice whether to seek, on the one hand, an order for reinstatement or re-engagement (under sections 113–115 of the 1996 Act) or, on the other, a compensatory award. She chose to seek an order for re-engagement.

(4) The University resisted the making of such an order on the ground that re-engagement would not be practicable. The tribunal rejected that argument. It held that although there had indeed been an irretrievable breakdown in the Claimant's relationship with a senior colleague there was no breakdown in the relationship of mutual trust and confidence between herself and the University more generally, which continued (and indeed continues) to employ her services on a self-employed basis.

(5) The tribunal accordingly made a re-engagement order. Para. 1 of the formal Judgment, sent to the parties on 8 December 2015, begins:

“Pursuant to s. 113 and s. 115 of the Employment Rights Act 1996, the tribunal orders that the Respondent is to re-engage the Claimant as a University Teaching Officer in the role of Lecturer.”

It goes on to provide for continuity of service. Para. 2 specifies the salary and other benefits which the Claimant is to receive. Para. 3 provides that the order “shall be complied with by 17 th February 2016”. At para. 15 of the Reasons the tribunal calculates the Claimant's pecuniary loss between the dismissal date and 17 February 2016 – “back pay” – as £102,901.43 (gross) and says that the University “is required to pay the Claimant [that sum] as part of the order for re-engagement”. 1

(6) It is the University's case that the effect of the tribunal's order is not to impose an enforceable obligation on it actually to re-engage the Claimant but only to render it liable for an “additional award”, under section 117 of the Act, if it did not do so. It has declined to re-engage the Claimant and has paid her the net

equivalent of £107,467.07, which it is common ground was the maximum amount payable under the applicable provisions.
2

On 19 October 2016 the Claimant commenced judicial review proceedings against the University in the Administrative Court challenging what she characterised as its “ongoing failure to comply with the Order of the Employment Tribunal that [she] be re-engaged as a lecturer …”. The primary relief sought in her pleaded grounds is:

(1) the quashing of the University's decision to refuse to comply with para. 1 of the re-engagement order;

(2) a declaration that that refusal is unlawful.

Two other heads of relief are also pleaded, but it is common ground that they are ancillary to the primary relief sought, and I need not set them out here.

3

Although the Claimant does not in terms seek a mandatory order that the University comply with the tribunal's re-engagement order the evident intention of the orders which she seeks is to compel it to do so; and Mr Aidan O'Neill QC, who appears for her before us, confirmed that it was his case that she would in principle be entitled to such an order – and to the remedies that would be available under the general law if it were not complied with. He acknowledged that the Court is not normally willing to grant an order for specific performance of a contract of employment, but he pointed out that that is not a universal rule and that in this case the employment tribunal had found in terms that re-engagement would be practicable.

4

Permission to apply for judicial review was refused on the papers by Morris J on 26 May 2017. The Claimant renewed the application at a hearing before Jay J on 10 October 2017 but permission was again refused. Both judges held that the remedies under the 1996 Act were exclusive and could not be enforced by proceedings in the High Court.

5

On 17 April 2018 Floyd LJ granted permission to apply for judicial review and, as already noted, directed that the application be retained in this Court.

6

The essential issue raised by the claim is whether the Claimant is entitled to relief in the High Court in relation to a right arising under the 1996 Act, and more particularly in relation to the enforcement of an order for re-engagement made by the tribunal under that Act. It is her case that she is so entitled as a matter of ordinary domestic law; but she relies also, so far as necessary, on sections 3 and/or 6 of the Human Rights Act 1998, on the basis that if she were not entitled to such relief her rights under articles 6 and 13 of the European Convention on Human Rights 2 and under article 1 of Protocol 1 to the Convention would be infringed.

THE STATUTORY PROVISIONS

7

The statutory regime relating to unfair dismissal is contained in Part X of the 1996 Act. Chapter I provides for the right not to be unfairly dismissed. Chapter II, which comprises sections 111–132, is headed “Remedies for Unfair Dismissal”.

8

Section 111 provides for the employment tribunal to have jurisdiction to determine claims of unfair dismissal: that is of course an exclusive jurisdiction.

9

Section 112 is headed “The remedies: orders and compensation” and prescribes the remedies that the employment tribunal can give where, in the exercise of its jurisdiction under section 111, it makes a finding of unfair dismissal. It provides that the tribunal shall first explain to the claimant what orders may be available under section 113 – that is (see below) an order for reinstatement or an order for re-engagement – and ask him or her whether they wish such an order to be made. If they do, the tribunal has a discretion whether to make an order. If it decides not to do so, it will make a compensatory award, in accordance with sections 118–126. Because the tribunal has to consider as a first step whether to make an order under section 113 (if sought), reinstatement/re-engagement is sometimes referred to as the “primary” remedy for unfair dismissal, but in reality such orders are only made in a very small minority of cases, either because claimants do not seek them in the first place or because tribunals decide not to make them.

10

Sections 113–117 form a group of sections under the heading “Orders for Reinstatement or Re-engagement”. Section 113 identifies the two orders between which a tribunal can decide – an order for reinstatement and an order for re-engagement, with the detailed provisions about such orders appearing in sections 114 and 115 respectively. I will refer to the two together as “section 113 orders”.

11

We are concerned with re-engagement. Section 115 (1) provides:

“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.”

Sub-section (2) requires the tribunal to specify the terms on which re-engagement is to take place and identifies certain matters which must be included. The only one to which I need specifically refer is (d), which reads:

“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”.

It was in accordance with that provision that the tribunal included in its Reasons the finding referred to at the end of para. 1 (5) above.

12

Section 116 contains provisions relating to the exercise by the tribunal of its discretion under section 113. I need only note that one of the factors which it must take into account is whether it is practicable for the employer to comply with an order for reinstatement or re-engagement.

13

Section 117 is headed “Enforcement of order and compensation”. It reads (so far as material):

“(1) An employment tribunal shall make an award of compensation, to be paid by the employer to the employee, if —

(a) an order under section 113 is made and the complainant is reinstated or re-engaged, but

(b) the terms of the order are not fully complied with.

(2) Subject to section 124, the amount of the compensation shall be such as the tribunal thinks fit having regard to the loss sustained by the complainant in consequence of the failure to comply fully with the terms of the order.

(2A) …

(3) Subject to subsections (1) and (2), if an order under section 113 is made but the complainant is not reinstated or re-engaged in accordance with the order, the tribunal shall make —

(a) an award of compensation for...

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4 cases
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    ...the second of my preliminary questions, and under reference to what was said by Underhill LJ in R (Mackenzie) v. University of Cambridge [2019] ICR 1477 at paragraphs 20 and 25, Mr Cowan submitted that the effect of the Tribunal’s Judgment of 20 January 2020 was not to impose any obligation......
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    ...MNP [2019] UKUT 259 (AAC) relevance to that question of the decision of the Court of Appeal in Mackenzie v. University of Cambridge [2019] EWCA Civ 1060 (20 June (2) the means by which decisions of the First-tier Tribunal (SENDIST) can be enforced, if not by the Tribunal itself (3) whether,......
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    ...as the case may be; and (c)…. 15 . In a recent decision from the UK Court of Appeal, Dr. Catherine Mackenzie v. The Chancellor, Masters and Scholars of the University of Cambridge [2019] 4 All ER 289 where Dr. Mackenzie had sought an order for re-engagement, which was resisted by the Unive......
  • Mr D Fortheringhame v Barclays Services Ltd
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    ...Tribunal. E Underhill LJ so commented very recently in Mackenzie v The Chancellor, Masters and Scholars of the University of Cambridge 2019 4 All ER 289, CA at para 22. The case was an unusual one. A re-engagement order had been made in favour of the Claimant, which Respondent university ha......

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