Are the Tides Turning on reluctance to order Reinstatement?

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The recent case of Bank of Ireland v Reilly [1] causes a rethink of the traditional reluctance of the courts/tribunals to order reinstatement in cases of unfair dismissal.  Traditionally, the view has been that in cases of dismissal, even among those which are deemed to have been unfair, the relationship of trust and confidence has broken down irrevocably.  This does not lend itself to reinstatement or reengagement.  That break down of trust and confidence is two-way, and few employees would want to return to the workplace

Where the employee contributed in some way to the dismissal, this did not preclude the court from considering reinstatement.  In this case, the court concluded that the bank’s conduct was ‘unreasonable and disproportionate’ and that ‘the manner in which it predetermined and manipulate the entire process from the outset reflects little credit on it and visited a grave injustice on Mr Reilly’ and further, that ‘an award of compensation would fall far short of providing adequate redress in this case and the only appropriate remedy is re-instatement’.  This was the remedy originally ordered by the Employment Appeals Tribunal.

Only time will tell to what extent this case will impact on the propensity of the EAT/courts to order reinstatement, however the judgment is a welcome reflection on the issue and will provide the basis for many an argument before the courts on the appropriate remedy.  Particularly where the basis for the amount of compensation, when ordered, is unascertainable, to say the least, it would be a very welcome development that basis for a claim for reinstatement has a clearer basis in law.

[1] The Governor and Company of the Bank of Ireland v. James Reilly, unreported, Noonan J., 17 April 2015