INTERPRETATION OF “PRACTICABLE” AND “JUST” IN RELATION TO “RE‐EMPLOYMENT” IN UNFAIR DISMISSAL CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1982.tb02486.x |
| Author | Paul Lewis |
| Date | 01 July 1982 |
| Published date | 01 July 1982 |
INTERPRETATION
OF
“
PRACTICABLE
”
AND
IN UNFAIR DISMISSAL CASES
“
JUST
”
IN RELATION
TO
“
RE-EMPLOYMENT
”
1.
INTRODUCTION
THE
purpose of this paper is to examine how the judicial bodies’
involved in operating the statutes on unfair dismissal have interpreted
the two key concepts which are there to guide them in exercising
their discretion as
to
whether
or
not
to
order
“
re-employment.”
’
The concepts are
“
practicability
”
and
“
justice.”
In doing this the overall aims are twofold. First, there
is
an
attempt to see if the interpretations put on these concepts can in any
way help to explain why
so
few ‘‘successful”4 applicants to
tribunals are
“
re-employed,” Only some
11
per cent.6 of successful
applicants had tribunal orders for
“
re-employmcnt
”
in
1976-78.
In the main, this was because
70-80
per cent.
of
applicants sought
compensation. However,
43
per cent. of those seeking
“
re-employ-
ment” were refused an order by the tribunal, and were awarded
compensation. Given Parliament’s intention that
“
re-employment
”
should be the primary remedy0 our survey is examining whether
judicial institutions have in fact given effect
to
the purposes of
legislation.
A
second aim therefore is to provide a case study in the
evolution of law to illustrate the influence of judicial decision
making.
The methods adopted in this paper are also twofold. First there
*
From 1972 until 1974 these were the industrial tribunals, the National Industrial
Relations Court (N.I.R.C.), the Court
of
Appeal and the House
of
Lords. For a
brief spell, from August 1, 1974, until January 31, 1976, the Queen’s Bench Division
of
the High Court replaced the N.I.R.C., and subsequently this was replaced by the
Employment Appeal Tribunal (E.A.T.) which
is
the current appeal body at the High
Court level.
2
The term
‘‘
order
”
replaced
“
recommendation
*’
when the Employment Pro-
tection Act 1975 (E.P.A.) provisions became operative on June 1. 1976.
8
“
Re-employment
”
is a generic term used here to include both
‘‘
reinstaJpment
”
and
“
re-engagement.”
For
a discussion of these terms see: Paul Lewis, Unfair
Dismissal
:
The concepts
of
Reinstatement and Reengagement,”
Employee Relations
4
*‘
Successful
”
is taken here to mean cases where tribunals have decided that
an applicant was unfairly dismissed.
6
This figure applies only to cases decided by tribunal hearings and comes from
research carried out by the author. It iq‘higher than the,published figure because it
includes cases where tribunals ordered reemployment
but
the employer refuscd
to comply. The author has some evidence tbt most
of
the 11 per cent. may
in
fact
end up receiving compensation. Paul Lewis, An analysis
of
why legisla$on has failed
to provide employment protection
for
unfairly dismissed employees (1981) XIX
British Journal
of
Industrial Relations
316-326. See especially p. 323. See
also
K.
Wj!liams and
D.
Lewis:
‘‘
The Aftermath of Tribunal reinstatement and re-engage-
ment, Research Paper
No.
23,
Department
of
Employment,
June 1981. This study
suggests that the number
of
actual
“
re-employments
”
is
considerably smaller than
the number of
“
re-employment
”
orders made by tribunals. See especially pp. 5-7.
384
(1981) 3, 28-32.
6
Hansard,
1974-75, vol. 891, col. 39.
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