1. Introduction
Re-engagement is the middle of the three forms of redress available under Section 7(1) of the Unfair Dismissals Acts 1977 to 2015: reinstatement, re-engagement, and compensation. It is the form of redress most frequently sought by claimants who wish to return to the employer’s service but who recognise that a return to the same role on the same terms may not be practical.
This article sets out the legal framework, the distinction between reinstatement and re-engagement, the factors that the WRC will consider in determining whether re-engagement is the appropriate form of redress, and the practical considerations that arise where re-engagement is awarded.
2. Legislation and Case Law
Section 7(1)(a) of the Unfair Dismissals Act 1977 provides for reinstatement: the employee is reinstated in the position which he held immediately before the dismissal on the terms and conditions on which he was employed, with the period between dismissal and reinstatement treated as a period of continuous service for all purposes.
Section 7(1)(b) provides for re-engagement: the employee is re-engaged either in the position which he held immediately before the dismissal or in a different position which would be reasonably suitable, on such terms and conditions as the Adjudication Officer considers reasonable.
The distinction between the two is significant. Reinstatement is a return to the status quo ante: the employee is treated as if the dismissal had never happened. Re-engagement is a return to employment on terms determined by the Adjudication Officer: it may be on different terms, in a different role, and from a date later than the dismissal.
Section 7(2) of the Act requires the Adjudication Officer, in determining the form of redress, to have regard to all the circumstances of the case. Relevant considerations include the wishes of the parties, the practicability of reinstatement or re-engagement, and the conduct of both parties leading up to the dismissal.
3. Decision
Re-engagement is awarded sparingly. In the great majority of unfair dismissal cases, the form of redress is compensation under Section 7(1)(c). Re-engagement is most likely to be awarded where the employee specifically seeks it, where the role or an alternative role remains available, where the breakdown of trust and confidence is not so severe as to preclude a return, and where the parties’ conduct does not weigh against a return.
The factors that weigh against re-engagement include: the absence of an available role; the level of acrimony in the dismissal process and at the hearing; the seniority of the role and the proximity of working relationships; the conduct of either party that may have damaged trust and confidence; and the time that has elapsed since the dismissal.
Where re-engagement is awarded, the Adjudication Officer will specify the terms: the date of re-engagement, the role, the remuneration, and the treatment of back-pay. The Adjudication Officer may award partial back-pay, reflecting the period during which the employee was unfairly dismissed less any earnings or other adjustments.
The implementation of a re-engagement order can give rise to practical difficulties. The employee may have taken alternative employment that he or she does not wish to leave. The employer may have filled the role. In practice, re-engagement orders are sometimes followed by negotiated alternative outcomes.
4. Takeaway
Re-engagement is a recognised but relatively unusual form of redress under the Unfair Dismissals Acts. It is most likely to be awarded where the employee specifically seeks it, where the role or an alternative remains available, and where the breakdown of trust and confidence does not preclude a return.
For employees considering whether to seek re-engagement, the practical advice is to be realistic about the prospects. Where the dismissal has been particularly acrimonious or where the role has been filled, re-engagement is unlikely.
For employers, the practical advice is to consider the form of redress at an early stage in any unfair dismissal complaint. Where re-engagement is realistically in prospect, the employer should consider whether to maintain the role in a ‘held’ state pending the WRC outcome.
Practitioners should be alert to the distinction between reinstatement and re-engagement and should advise clients carefully on which form of redress to seek.
5. Further information
This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.
6. About Crushell & Co
Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.
We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.
Connect: @CrushellLaw or www.wordpress-576593-6594403.cloudwaysapps.com
