|
Order for Reinstatement or Re-engagement.
In deciding whether to make an order that
the employer should reinstate the employee
in the same job or re-engage the employee
under a new contract of employment, the
tribunal will take into account:
- the employee's wishes;
- whether it is practicable for the
employee to return to work for the
employer (there may, for example, be
circumstances in which it is not
practicable because relationships at the
work place have been seriously damaged);
- in cases where the employee was
partly to blame for the dismissal,
whether or not it would be just to make
such an order.
Where a tribunal orders the reinstatement
or re-engagement of an employee who was
dismissed without statutory dismissal and
disciplinary procedures having been followed
by the employer, and where failure to follow
them was wholly or mainly the employer's
fault, it will also award four weeks' pay to
the employee (unless it considers that this
would result in injustice to the employer).
If the employer fails to comply with the
terms of an order for reinstatement or
re-engagement the tribunal, on being
notified of the failure, will make an award
of compensation calculated in the ordinary
manner provided for in the legislation
(subtracting the award of four weeks' pay
described in the previous paragraph).
Also the tribunal will make an additional
award of compensation to be paid by the
employer, unless the employer satisfies the
tribunal that it was not practicable to
comply with the order for reinstatement or
re engagement as the case may be.
Calculating Employment Tribunal Awards of
Compensation.
Compensation is made up of both a Basic
award and a Compensatory award calculated as
follows:
Basic award.
The basic award is calculated in a
similar method as a statutory redundancy
payment by adding up the following amounts,
but only continuous employment within the
last 20 years can count:
- 1½ weeks' pay for each complete year
of employment when an employee was
between the ages of 41 and 65 inclusive;
- 1 week's pay for each complete year
of employment when an employee was
between the ages of 22 to 40 inclusive;
- ½ week's pay for each complete year
of employment when an employee was below
the age of 22.
The maximum number of weeks' pay that may
be awarded is 30. There is also a maximum
week's pay that can be used to calculate the
award. The limit on a week's pay may vary
from year to year: the current figure is
£280.
- In trade union, health and safety,
employee representative, workforce
representative and occupational pension
scheme trustee cases (see Interim Relief
above), there is a minimum figure for
the basic award. This minimum may vary
from year to year.
The basic award, including the minimum
award in trade union and health and safety
cases, can be reduced if the employee:
- contributed to some extent to the
dismissal, or his or her conduct prior
to the dismissal otherwise justified the
reduction;
- was within a year of age 65 at the
effective date of termination;
- unreasonably refused an offer of
reinstatement or unreasonably prevented
the employer from complying with an
order of reinstatement;
- has already been awarded or has
received a redundancy payment;
- has been awarded any amount in
respect of the dismissal under a
designated dismissal procedures
agreement.
Where an employee has been dismissed
without Statutory Dismissal and Disciplinary
Procedures having been followed where they
should have been (if failure to follow them
was wholly or mainly the employer's fault)
and the amount of the basic award is less
than four weeks' pay (before any reduction
for the last two reasons above), the
tribunal will increase it to four weeks' pay
unless it considers that this would result
in injustice to the employer.
Compensatory Award
This award compensates the employee for
the loss suffered as a result of the
dismissal insofar as the employer is
responsible for this loss. As well as
covering loss of earnings between the
dismissal and the hearing and an estimate of
future loss, the tribunal will also consider
matters such as loss of pension and other
rights and any reasonable expenses incurred
by the employee as a result of the
dismissal.
The compensatory award is an amount the
tribunal considers just and equitable in the
circumstances, but there is a maximum
compensatory award except in cases where the
reason for the dismissal is that the
employee made a protected disclosure under
the Public Interest Disclosure Act 1998 or
took action relating to Health and Safety.
The maximum compensatory award may vary from
year to year: the current figure is £56,800.
The tribunal will reduce the award if it
finds that the employee was partly to blame
for the dismissal or the employee did not
mitigate his or her loss: for example, by
failing to make a reasonable effort to
obtain another job.
Certain payments made by the employer to
the employee, for example wages in lieu of
notice or an ex gratia payment, will
normally result in a reduced compensatory
award. The compensatory award will also be
reduced by the amount of the employee's
earnings from any other employment between
the dismissal and the tribunal hearing.
Under the Statutory Dismissal and
Disciplinary Procedures provisions, if an
employer dismisses an employee without the
statutory procedures having been completed
where they applied and are not treated as
having been complied with, and the failure
to complete them was wholly or mainly the
employer's fault, any compensatory award
will be increased by at least 10 per cent
and up to 50 per cent.
Similarly, if the procedures were not
completed and the fault lay wholly or mainly
with the employee, any compensatory award
will be reduced by 10 to 50 per cent. At
what point on the scale between 10 and 50
per cent to make the increase or reduction
is at the tribunal's discretion, and in
exceptional cases it will be able to make
one of less than 10 per cent or none at all.
Additional Award.
This award compensates the employee for
the additional loss suffered because of the
employer's failure to comply with a
tribunal's order for reinstatement or
re-engagement. The additional award will be
between 26 and 52 weeks' pay. There is a
maximum week's pay that can be used to
calculate the additional award. The limit on
a week's pay may vary from year to year: the
current figure is £280.
Note: Employment tribunals may however
exceed these limits if the total
compensation awarded (apart from the basic
award) would otherwise be less than the
arrears of pay element of the original award
with which the employer failed to comply.
Interest on Tribunal Awards.
Legislation provides that an employer who
does not pay the compensation awarded by the
tribunal within 42 days of the tribunal's
decision, will be required to pay simple
interest on the amount outstanding.
However, in relation to awards in cases
of discrimination on the grounds of sex,
race and disability, interest begins to
accrue from the day after the day on which
the tribunal's decision is sent to the
parties. However no interest will be payable
if the full amount of the award is paid to
the complainant within 14 days of the
decision being sent out.
Awards of Costs.
Costs (expenses in Scotland ) are not
normally awarded in employment tribunal
cases. They can be, however, if the tribunal
decides that a party has acted frivolously,
vexatiously, abusively, disruptively or
otherwise unreasonably in bringing or
conducting the case.
Costs of an adjournment or postponement
may also be awarded when the adjournment or
postponement was requested at the last
minute by either party with no good reason
or where it is necessary because a party has
not come prepared to deal with issues which
may be expected to arise at the hearing.
Financial Assistance for Tribunal
Hearings.
Legal aid is not available at employment
tribunals, but some employees may be able to
claim a limited amount of free advice under
the legal advice and assistance scheme. This
does not cover the cost of a legal
representative at the hearing.
The Equal Opportunities Commission and
the Commission for Racial Equality may also
provide assistance in certain cases
concerning alleged discrimination and/or
discriminatory practices in the workplace.
Allowances are available from the
tribunal office to cover the cost of travel
to a hearing and other expenses both to the
claimant and respondent, to the witnesses
called and to representatives, including
members of Citizens Advice Bureaux, but not
full-time officials of employers'
organisations or trade unions, barristers or
solicitors or any other paid or unpaid
professional person or organisation or
organisations who represent parties as
opposed to acting as their witnesses. Loss
of earnings may also be paid up to a
maximum. The tribunal can provide details of
the current rate on the day of a hearing.
 |
The Interactive
Law Group