Re-engagement and Alternative Vacancies21 October 2011
Does a finding that a dismissal was genuinely on grounds of redundancy remove the need to explain the remedies of reinstatement or re-engagement?
No, says the EAT in the case of King v Royal Bank of Canada.
Ms King was dismissed by reason of redundancy. The tribunal found that the dismissal was automatically unfair because there was a complete failure to follow the Statutory DDP (now repealed). However, the tribunal concluded that there was a real redundancy situation and as there was no suitable alternative job, the dismissal was not substantially unfair. With regard to remedy, the tribunal awarded compensation for financial loss but overlooked the issue of reinstatement or re-engagement. Ms King asked for reinstatement in her ET1 form and confirmed in her statement that she was seeking re-engagement.
Ms King appealed the decision. She was not legally represented at the time and re-employment was not raised as an issue in her Notice of Appeal. The question of re-employment was only raised at a preliminary hearing by Counsel and permission to amend was granted. RBC applied to vary or discharge the proposed amended grounds.
The EAT held that the tribunal’s failure to deal with the remedies of reinstatement and re-engagement constituted a “striking omission” and concluded that it “was and is right to grant permission to amend” on the basis that any prejudice to Ms King would far outweigh any prejudice that RBC would suffer. The EAT also held that the tribunal wrongly restricted itself to considering only vacancies at the time of Ms King’s dismissal as the situation with regard to possible vacancies may have changed between the date of dismissal and the period during which RBC ought to have followed a fair procedure.