Can Employment Tribunals (ETs) or the courts force employers to re-engage employees who have been unfairly dismissed? In a ground-breaking decision, the Court of Appeal has answered that question in the negative (Mackenzie v The Chancellor, Masters and Scholars of the University of Cambridge).

The case concerned a university lecturer who succeeded in an unfair dismissal claim under the Employment Rights Act 1996 (ERA). An ET ordered the university to re-engage her. The order specified, amongst other things, the salary and other benefits to which she would be entitled on reinstatement and directed the university to pay her £102,901 in back pay.

The university, however, declined to re-engage her, contending that it was under no enforceable obligation to do so. Instead it elected, under Section 117 ERA, to pay her additional compensation of £107,467, the maximum sum that could have been awarded to her by the ET.

The lecturer launched judicial review proceedings in the High Court, arguing that the university should be compelled to re-engage her. Her arguments initially fell on fallow ground but, recognising the importance of the issues raised, the Court of Appeal retained the matter for consideration on its merits.

In rejecting her case, the Court noted that the law has always been very reluctant to countenance the making of orders which require the continuation of employment relationships. The ERA contains no specific provision conferring an absolute right on employees to be re-engaged and it was perfectly understandable that Parliament should not have been prepared to empower tribunals to make specifically enforceable orders for reinstatement or re-engagement.

The Court found that the ERA was not intended to impose an absolute or indefeasible obligation on employers to re-engage unfairly dismissed employees, but rather created a situation where employers must either re-engage or become liable for the sums in compensation specified by Section 117.

Another important issue raised by the case was whether the lecturer was entitled to seek enforcement of the ET’s re-engagement order by way of judicial review. In ruling that she was not, the Court noted that the statutory scheme of employment protection is intended to be entirely self-contained and that ETs thus enjoy exclusive jurisdiction in respect of rights arising under the ERA.