Interim reinstatement: Do colleagues’ opinions matter?
In a previous blog post, we have discussed interim reinstatement and the four-stage test that must be used in determining whether it will be granted. To recap, the four stages are:
- Does the applicant have an arguable case for unjustified dismissal?
- Does the applicant have an arguable case for reinstatement to be granted if the claim for unjustified dismissal is successful?
- Where does the balance of convenience lie?
- What does the overall justice of the case require?
Impact on colleagues
The third stage of the test, the balance of convenience, requires an assessment of the hardships to the parties (and any third parties) caused by the interim reinstatement. This is often used by employers as the key reason for opposing interim reinstatement, citing potential impact on colleagues. Employers will provide affidavit evidence from other employees stating why they could not work with the employee in question if they were reinstated.
The Employment Court has recently discussed this exact issue in Humphrey v Canterbury District Health Board. The DHB had submitted affidavit evidence from numerous employees citing why they could not work with Dr Humphrey if he was reinstated. The Court stated:
“My concerns about ordering interim reinstatement largely centre on the potential impact on colleagues. However, I have concluded that appropriate measures can be put in place to reduce such impact, including via a supported and structured return to work.”
Chief Judge Inglis then went on to note that this was linked to the size and HR capabilities of the DHB as an employer. He noted:
“The reality is that while the DHB has a number of challenges, it is in a significantly different position to (for example) an owner-operator business responding to a claim of interim reinstatement in the context of a dismissal based on an alleged irreconcilable breakdown in the relationship with an employee.”
This appears to be a shift from the previous leading position in case law (as set out in 2010 in Lewis v Howick College), where impact on colleagues was held to be a justifiable reason for not granting interim reinstatement. Chief Judge Inglis linked this shift to Parliament’s decision to make reinstatement a primary remedy in 2018, stating:
“It is distinctly arguable that, properly interpreted, the amendment to s 125 reflected a Parliamentary intention to raise the bar that employers would have to negotiate in order to prove that reinstatement was neither reasonable nor practicable”
Moving forward, it appears that employers will have to work harder to argue that interim reinstatement should not be granted because of colleagues opinions.
If you have any questions or queries in relation to interim reinstatement , please get in touch with the Watermark team directly. We are happy to advise you.