This guide is maintained as a current resource for July 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Comprehensive guide to reinstatement after unfair dismissal in England and Wales. Explains how employment tribunals restore dismissed employees, legal criteria, workplace practicability, compensation for lost earnings, and when reinstatement and re‑engagement orders are appropriate.
When an Employment Tribunal in England and Wales finds that an employee has been unfairly dismissed, several remedies are available. The most common outcome is compensation, but in limited circumstances the tribunal can order reinstatement - requiring the employer to take the claimant back as if the dismissal had never occurred - or re‑engagement into a comparable role. These orders aim to restore the employment relationship and make good the harm caused by an unfair dismissal. This guide explains the legal basis for reinstatement, how it works in practice, when it is (and is not) appropriate, related legal processes, potential risks, and common questions.
Legal Basis for Reinstatement
Under the Employment Rights Act 1996 (ERA 1996), when a tribunal upholds an unfair dismissal complaint, it must explain the remedies available, including reinstatement and re‑engagement, and ask the claimant whether they want such an order. The tribunal then may make a reinstatement order if it considers it appropriate.
Section 114 of ERA 1996 provides that an order for reinstatement requires the employer to treat the claimant “in all respects as if they had not been dismissed”. This means restoring all benefits, seniority, pension rights and other conditions that would have been in place if the dismissal had not occurred.
Reinstatement and re‑engagement are statutory remedies distinct from financial compensation and are considered preferred remedies by tribunals before awarding compensation, although they are rarely ordered in practice.
What Reinstatement Means in Practice
Returning to the Same Role
A reinstatement order places the claimant back into the same job on the same terms and conditions as before the dismissal. The employment relationship is treated as if it had never been broken, preserving continuity of service and entitlements such as pension and promotion prospects.
Compensation and Backpay
If the tribunal orders reinstatement, it will also specify any amounts payable by the employer for benefits the employee would reasonably have had if they had continued in employment since dismissal. This often includes arrears of pay or other benefits lost during the period of dismissal, subject to adjustments for earnings received from other employment or ex‑gratia payments.
Factors the Tribunal Considers
Tribunals assess whether reinstatement is appropriate by reference to:
- The claimant's expressed wish to be reinstated. A tribunal will only make an order if the claimant asks for it; they cannot be reinstated against their will.
- Practicability for the employer. If reinstating the employee is not feasible - for example, because the role no longer exists, the employer has hired a permanent replacement or there has been a fundamental breakdown of trust - the tribunal may refuse to order reinstatement.
- Conduct of the claimant. If the employee contributed to their dismissal, it may be just to refuse reinstatement.
- Business impact. Where reinstatement would unduly disrupt the employer's operations or require displacing another employee, it may be inappropriate.
Tribunals must first consider reinstatement. Only if reinstatement is unsuitable may they consider re‑engagement - offering employment in a similar or suitable alternative role.
Reinstatement vs Re‑engagement
Reinstatement requires the employee to resume their former role with full continuity, whereas re‑engagement places the claimant in a comparable job that may differ from the original position. Re‑engagement is considered where the original position is unavailable or reinstatement would be impractical, but the claimant still wishes to return to work in some capacity.
Both remedies require the tribunal to specify the terms, including pay, privileges and the date by which the employer must comply. If the employer fails to comply with an order, the tribunal may award an additional penalty under section 117 ERA 1996, typically between 26 and 52 weeks' pay.
How Often Reinstatement Orders Are Made
Reinstatement orders are exceptional. Employment tribunals seldom make them in unfair dismissal cases because they can be highly disruptive and rely on an ongoing workable relationship between the parties. Estimates suggest that reinstatement or re‑engagement orders are made in less than 1 % of unfair dismissal cases.
Practical reasons for rarity include:
- Employers having moved on operationally since dismissal.
- Relationships of trust and confidence breaking down after dismissal.
- Claimants prioritising financial compensation over returning to the workplace.
Procedure for Seeking Reinstatement
Claimants should take the following steps:
- Express a clear wish for reinstatement when responding to tribunal forms or at remedy stage. The tribunal will ask whether the claimant wishes reinstatement or re‑engagement following a finding of unfair dismissal.
- Prepare submissions on practicability. Evidence that reinstatement is feasible - such as availability of the role and working relationship prospects - assists the tribunal's assessment.
- Consider alternatives. If reinstatement is impractical, the claimant might ask for re‑engagement in a suitable alternative role.
- Attend remedy hearing. Tribunals typically hold a separate remedy hearing if liability for unfair dismissal is established. Remedies, including reinstatement, re‑engagement or compensation, are considered at this hearing.
Risks and Practical Considerations
Workplace Dynamics
Even if reinstatement is ordered, returning to the same environment may be challenging due to altered workplace relationships or restructuring. Claimants and employers should carefully consider whether reinstatement serves their interests.
Employer Compliance
Tribunal orders are legally binding, but compliance delays or resistance can occur. If an employer refuses to comply without practical justification, tribunals may increase financial penalties, including additional awards under section 117 ERA 1996.
Compensation Caps and Financial Remedies
Where reinstatement orders involve backpay or benefits, the compensation is calculated on actual loss rather than statutory capped awards commonly applied to standalone compensation claims. This can result in considerable amounts if the period between dismissal and reinstatement is long, but adjustments take into account earnings from other work or notice payments received.
Common Questions
Can reinstatement be ordered in discrimination or whistleblowing cases?
Reinstatement and re‑engagement orders are statutory remedial powers under the unfair dismissal provisions of ERA 1996. If the claim includes successful discrimination or whistleblowing elements and an unfair dismissal finding, the tribunal may consider these orders as part of the remedy. Otherwise, remedies for non‑unfair dismissal claims are typically compensatory.
Is reinstatement automatic if unfair dismissal is found?
No. A tribunal must consider reinstatement where the claimant wishes it, but it is not automatic. The tribunal will assess practicability and fairness before making an order.
What happens if the employer has hired a replacement?
The existence of a replacement employee does not automatically preclude reinstatement, but it is a relevant factor in assessing practicability. The tribunal considers whether it is feasible to comply with the order without undue disruption.
Key Takeaways
Reinstatement after unfair dismissal is a statutory remedy in England and Wales that restores the claimant to their former role as if the dismissal never occurred. It requires the claimant's desire to return and the tribunal's assessment that reinstatement is practicable and fair. Although the Employment Rights Act 1996 empowers tribunals to order reinstatement and associated backpay of lost wages and benefits, such orders are rare because of workplace practicality and relational dynamics. Where reinstatement is unsuitable, tribunals may instead consider re‑engagement into a comparable role or award financial compensation. Understanding the legal framework and procedural steps helps claimants and employers navigate this complex remedy.
