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Legal Corner: Dismissed employee reinstated after employer’s error

26th Oct 2017

 

When an individual brings a successful unfair dismissal claim against their former employer, the vast majority of them seek compensation for the fact that they have lost income. However, that is not the only remedy available – it is also possible to seek reinstatement (to go back to your old job) or reengagement (to be reemployed by the same employer in a different role). It is often thought that such remedies are hard to obtain (and it is true that there are many factors that have to be taken into account). However, the recent case of Ms Ramos Alvarez v The Royal Borough of Kensington & Chelsea 2201145/2015 is a clear reminder that reinstatement is a powerful remedy available to individuals.

Ms Ramos Alvarez was employed as a legal secretary by Kensington and Chelsea from 2003. During her employment she came into conflict with some of her colleagues, resulting in various informal warnings for her inappropriate behaviour. She also received a written warning after making allegations of bullying and harassment against a colleague which were found to be inaccurate.

In 2013, the legal services of Kensington & Chelsea merged with those of the London Borough of Hammersmith & Fulham. The number of legal secretary positions reduced from eight to three. A competitive selection process took place consisting of a supporting statement and an interview. Ms Ramos Alvarez was informed that she had been placed fourth; she was therefore informed that she would be made redundant. The three candidates who had scored the highest were confirmed in post.

Ms Ramos Alvarez appealed against her selection for redundancy. During that process, the manager in charge of the appeal noticed that an arithmetical error had been made when weighting the candidates’ scores for their statement and interview and, upon recalculating them, found that Ms Ramos Alvarez should have been scored third – and therefore offered a role. Despite this, the manager dealing with the redundancy process refused to accept that Ms Ramos Alvarez should have been given the role and instead suggested that she, and the candidate who had previously been placed third, should have a further interview to determine who got the job. Ms Ramos Alvarez refused this offer. Notwithstanding the mathematical error and the fact that her appeal against selection was upheld, her redundancy was not overturned. It was decided that that was the ‘fairest’ course of action in the circumstances.

Ms Ramos Alvarez brought a claim to the tribunal alleging unfair dismissal, as well as race and disability discrimination. Over an extended period of case management, she withdrew her claims of race and disability discrimination. Kensington & Chelsea denied that Ms Ramos Alvarez had been unfairly dismissed, until shortly before the tribunal hearing, when that was admitted. They then also admitted that Ms Ramos Alvarez was entitled to the maximum available compensation of £26,508 (being one year’s loss of earnings). However, Ms Ramos Alvarez wished to be reinstated.

By the time of the hearing, the legal services of the London Borough of Westminster had merged with Kensington & Chelsea and Hammersmith & Fulham to create a Tri-Borough shared service. Although the three boroughs operate a shared legal services function, each of the three boroughs operated with a degree of autonomy, particularly in respect of staff employment and recruitment. The London Borough of Hammersmith and Fulham had advertised for a legal secretary following the departure of one employee. That vacancy still existed at the time of the hearing. Kensington & Chelsea argued that they did not have a vacancy, and it was therefore not appropriate to make a reinstatement order. The Judge did not accept that argument, taking the view that there was one vacancy in the Tri-borough shared legal services team which could easily be filled by Ms Ramos Alvarez. Such an order would not lead to an issue of ‘over-staffing’. Even if it did, that arose not from reinstating Ms Ramos Alvarez, but from not dismissing the employee who should have been dismissed as a result of the redundancy selection process.

Kensington & Chelsea also argued that in making and then withdrawing ‘unjustified’ allegations of race and disability discrimination, Ms Ramos Alvarez had destroyed the relationship of trust and confidence between employer and employee, such that it was not appropriate for her to reinstated. The judge accepted that such claims had been made, but also noted that similar claims had been made during Ms Ramos Alvarez’s employment, and this had not resulted in her employment being terminated. Moreover, the judge found that it was unsurprising that Ms Ramos Alvarez had been suspicious of the miscalculation of her score, particularly when that error was not rectified. In those circumstances, it was considered appropriate to make an order reinstating Ms Ramos Alvarez to the position of legal secretary.

This case is a reminder to employers firstly, that they need to be very careful about ensuring that they follow a fair process, and rectify any errors along the way, even if they are inadvertent. It is also a warning that simply offering the maximum award payable in such a case (as was done here) is not always enough, and that an employee may still be reinstated to their previous role.

Safia Tharoo, Barrister, 42 Bedford Row, London

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