In law there are two main types of remedy available to a claimant pursuing litigation: legal and equitable. Legal remedies are the most common and cover things such as the payment of damages. In addition, there are equitable remedies that tend to aim to correct (rather than compensate) an unlawful act – an example in an employment context is an order for specific performance of contract.

Most employment law in Employment Tribunals, regrettably, focuses on legal rather than equitable damages. For example, if an employer decides to select a black candidate for redundancy instead of a white employee just because of her race the dismissed black employee would have a claim that her dismissal was directly discriminatory. But, even though there is no justification in law for direct discrimination (the act is literally inexcusable) an employment Judge could not, even if they wanted to, order the dismissed employee gets her job back. The only option is for compensation to be awarded.

This is an insult to the very notion of justice. An employer with deep pockets can discriminate with impunity since they know that even if a case is lodged (most are not – especially in the new fees regime) the worst that can happen is an order for compensation which they are happy to pay up (or not as the case may be!).

In unfair dismissal cases however the situation is somewhat different. Tribunals do have the power to order an employee’s reinstatement (but they hardly ever do) and they also have power to order interim relief in some unfair dismissal cases until the tribunal comes to a final decision (which again is very rare but does occasionally happen).

The difficulty in the former case is even if a case is won and a dismissal is found to be unfair and an employment judge makes the very rare decision to make a reinstatement order then the employer can often choose to ignore that order. That is certainly the approach some civil service departments have taken when faced with such an order following cases brought by PCS where an ET has made an ET order. The only consequence of such intransigence is that the compensatory award – at taxpayer expense remember – will often be a lot greater than it would otherwise be.

But when it is a public authority with an obligation to act consistently with the ECHR does this fact impose a legal obligation on the public authority to reinstate even though the primary legislation does not make such a reinstatement obligatory. That is the tantalising (and unresolved) suggestion in Bakhsh, R (on the application of) v Northumberland Tyne & Wear NHS Foundation Trust.

The claim was an application for judicial review but before summarising the High Court’s decision here it is necessary to provide a little background. The claimant, Yunus Baksch, was a self described “militant trade unionist” in Unison who was unfairly dismissed by the public authority because of his trade union activities. At a remedies hearing the public authority was ordered to reengage the claimant but when he attempted to return to work this was refused by the public authority. The reasons for this as revealed in a subsequent remedies hearing by the public authority was because of its believe that he would use the post to pursue his own agenda (i.e. continue his trade union activities). The tribunal was less than impressed with the public authority’s intransigence and found that the reason to resist re-engagement was “a decision taken by public officials to use public money allocated for the Health Service to flout an order of this Tribunal and to do so quite deliberately and without any justification so far as this Tribunal is concerned.”

There was no further remedy available through the employment tribunal system to allow the claimant to enforce the re-engagement order. In short, an employer was able to dismiss an employee for exercising his Article 11 rights, and even where that decision was found to be unlawful and reinstatement ordered an employer can disregard that order with no further action taken against them except, perhaps, some extra financial compensation.

This is why this issue was challenged by means of Judicial Review against the public authority’s decision not to re-engage the claimant without legitimate reason.  The claimant alleged that, notwithstanding the lack of an explicit obligation in UK law to reinstate the successful claimant in an unfair dismissal claim, the public authority’s obligation to act in accordance with the ECHR meant that the refusal to reinstate was unlawful. Regrettably, Bakhsh’s complaint was a case his union, Unison, failed to back.

The hearing in this JR was not to assess to determine that issue save that it was to determine whether the position was arguable (on the sift the High Court had suggested it was totally without merit). The judgement found that it was arguable that as a matter of public law, a public authority was obligated because of their duties under s.6 of the Human Rights Act 1998 to reinstate the claimant and therefore the case would proceed to a full hearing.

In the event, faced with this further challenge the public authority settled the case, at very great cost to the taxpayer. Nonetheless, the issue does raise the intriguing prospect that where a claimant is found to be unfairly dismissed that a consequent reinstatement order may be enforceable. But more importantly, it seems to be that the real prospect the case opens is in respect to where there is no equitable remedy in private law possible at all, such as discriminatory dismissals for which there is not a unfair dismissal claim possible which, equally, engage ECHR rights.

Alas, such prospects are following the settlement of the Bakhsh case only possibilities, until the next case at least …

Cases Referenced

Bakhsh, R (on the application of) v Northumberland Tyne & Wear NHS Foundation Trust [2012] EWHC 1445 (Admin)