O'Laoire v Jackel International Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE NOURSE,LORD JUSTICE RUSSELL |
| Judgment Date | 30 January 1991 |
| Judgment citation (vLex) | [1989] EWCA Civ J1120-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 89/1118 |
| Date | 30 January 1991 |
[1989] EWCA Civ J1120-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MAYOR'S AND CITY OF LONDON COUNTY COURT
(MR RECORDER GOUDIE Q.C.)
Royal Courts of Justice
The Master of The Rolls
(Lord Donaldson)
Lord Justice Nourse
Lord Justice Russell
89/1118
THE APPELLANT appeared in person.
MR M. A. SUPPERSTONE (instructed by Messrs Taylor Garrett) appeared for the Respondents (Defendants).
This appeal concerns the rights of an employee when he has been unfairly dismissed, an industrial tribunal has made an order for reinstatement and the employee has not been reinstated.
Mr. O'Laoire, to whom I will refer as "the appellant", was employed by Jackel International Limited, to whom I will refer as "the employers", as deputy managing director. On 2nd October 1986 he was dismissed in circumstances which have been held by an industrial tribunal to constitute unfair dismissal and, by a separate and subsequent judgment of the High Court, to constitute wrongful dismissal. The latter decision is the subject of a separate appeal, which has yet to be heard.
THE REINSTATEMENT ORDER
By section 68 of the Employment Protection (Consolidation) Act 1978 ("the Act"), if the tribunal finds that the complainant has been unfairly dismissed, it is its duty to explain to him what orders for reinstatement or re-engagement may be made under section 69 and in what circumstances they may be made. It is then its duty to ask him whether he wishes the tribunal to make such an order and, if he does so wish, the tribunal may make it. The appellant did so request. It then became the duty of the tribunal first to consider whether to make an order for reinstatement and, only if it decided not to do so, to proceed to consider whether to make an order for re-engagement. As the appellant, in an argument of quite outstanding quality for a lawyer, let alone an unqualified litigant in person, rightly pointed out, Parliament has indicated that the preferred remedies for unfair dismissal are reinstatement, re-engagement and monetary compensation in that order. This emerges clearly from a consideration of sections 68 and 69(5) and (6) of the Act.
In these circumstances it is, perhaps, somewhat surprising that, in the experience of the Employment Appeal Tribunal, reinstatement orders are something of a rarity and that tribunals only tend to make them "where they find that the employee has been really badly treated and ought to be, as far as possible, placed in the position in which he or she would have been had the dismissal not taken place" (per Wood J. in Conoco (U.K.) Ltd. v. Neal [1989] I.C.R. 114, 121). However, it may be that, by the time that the complaint reaches the industrial tribunal, relations between the complainant and his employer have usually reached a stage at which reinstatement has ceased to be a realistic option.
The power to make a reinstatement order is to be found in section 69(1)-(3) of the Act, which is in the following terms:
69. Order for reinstatement or re-engagement.
"(1) An order under this section may be an order for reinstatement (in accordance with subsections (2) and (3)) or an order for re-engagement (in accordance with subsection (4)), as the industrial tribunal may decide, and in the latter case may be on such terms as the tribunal may decide.
(2) An order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed, and on making such an order 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) Without prejudice to the generality of subsection (2), 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."
On 11th June 1987 the North London Industrial Tribunal made an order in the following terms:
"The unanimous decision of the Tribunal is that the applicant was unfairly dismissed by the respondent and that the respondent is ordered to reinstate the applicant, the terms of the order being set out fully in the Schedule hereto. The applicant's claim under Section 53 of the Employment Protection (Consolidation) Act 1978 is dismissed.
The Schedule referred to:—
(1) The respondent shall treat the applicant in all respects as if he had not been dismissed on 2 October 1986.
(2) The amount, calculated to 3 August 1987, payable by the respondent to the applicant in respect of remuneration which the applicant might reasonably be expected to have received but for his dismissal is £27,833.00 gross less such tax, national insurance, pension contributions and any other deductions which would properly have been made if he had continued to receive remuneration under his contract of employment. If reinstatement takes effect later than 3 August 1987 the gross sum payable will be increased at a daily rate equivalent to a gross annual salary of £40,000.
(3) There shall be restored to the applicant the same rights in respect of holiday entitlement, provision and use of a company motor car, pension provision and BUPA cover as he enjoyed at the date of dismissal.
(4) Without prejudice to the generality of paragraphs 1 to 3 of this order, we order:—
(a) that as from 3 November 1986 the applicant shall be treated as entitled to the post of managing director of the respondent company and
(b) that he be given the right to a stock option no less favourable in terms of its original issue and present value than those applied to Mr. Banerjee who was appointed managing director on 3 November 1986, both these matters being improvements in the applicant's terms and conditions of employment which he should, if not dismissed, have benefited from as from 3 November 1986.
(5) This Order shall be complied with by 3 August 1987."
The true construction of section 69 and of the tribunal's order lies at the heart of this appeal.
The appellant submits that the tribunal was ordering his reinstatement and further ordering the employers to make payments to him in accordance with the Schedule pending reinstatement, whenever that might take place. If, in breach of the order, the employers did not reinstate him, he nevertheless would be entitled to the monetary payments ordered. Furthermore, the appellant did not shrink from contending that, as the order indicated a rate at which payments should be made if he was not reinstated by 3rd August and as it contained no termination date, he could insist upon payment at this rate for life, subject only to abatement to the extent that he was able to mitigate his loss by obtaining other employment or otherwise.
Looking only at the order, there is much to be said for this contention, but the order has to be read in the light of section 69 and, in particular, section 69(2). This section has, in turn, to be read with section 71(1) and (2) of the Act "Enforcement of s. 69 order and compensation" which is in the following terms:
"(1) If an order under section 69 is made and the complainant is reinstated or, as the case may be, re-engaged but the terms of the order are not fully complied with, then, subject to section 75, an industrial tribunal shall make an award of compensation, to be paid by the employer to the employee, of such amount 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.
(2) Subject to subsection (1), if an order under section 69 is made but the complainant is not reinstated or, as the case may be, re-engaged in accordance with the order—
(a) the tribunal shall make an award of compensation for unfair dismissal, calculated in accordance with [sections 72 to 76] to be paid by the employer to the employee; and
(b) except in a case in which the dismissal is to be regarded as unfair by virtue of section 58 or 59(a) or in which the employer satisfies the tribunal that it was not practicable to comply with the order, the tribunal shall make an additional award of compensation to be paid by the employer to the employee of an amount
(i) where the dismissal is of a description referred to in subsection (3), not less than twenty-six nor more than fifty-two weeks' pay, or
(ii) in any other case, not less than thirteen nor more than twenty-six weeks' pay."
Accordingly, we have this position:
(a) The Act provides no machinery for the specific enforcement of an order for reinstatement made under section 69. By contrast, it can, in effect, itself so order under sections 77(9) and 79(2)(a) in circumstances not here relevant and on an interim basis, by making an order for "the continuation of the employee's contract of employment". The absence of such machinery in general and the inclusion of an exceptional power of enforcement in exceptional circumstances is consistent with the general...
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