In the recent case of Troy v John Player & Sons, the EAT reinstated an employee, Mr. Troy, into his previous role. He had been made redundant in June 2013 from John Player & Sons and had in fact gone on to secure new employment elsewhere. Nevertheless the EAT decided that the redundancy in June 2013 was not genuine and, approximately 3 years after he left John Player & Sons, Mr. Troy was reinstated this year.
In the normal course, Mr. Troy would be entitled to his loss of pay from John Player & Sons since June 2013; however this is not expressly referred to in the EAT’s decision.
Under the Unfair Dismissals legislation it is indeed possible that, instead of awarding compensation, an order can be made to reinstate an unfairly dismissed former employee into his previous role or, alternatively, reengage him in another reasonably suitable role. However, reinstatement and reengagement can have unintended consequences and such draconian orders are very much a rarity in practice.
In this case, as part of the redundancy procedure, Mr. Troy was deemed by John Player & Sons not to be capable of performing certain functions of the newly created roles in the company which were to replace the 22 redundant roles of which one had been held by Mr. Troy. Also, apart from the purported redundancy, there had been performance issues with Mr. Troy during his employment.
Previous case law has evidenced a reluctance on the part of the EAT and courts to order reinstatement where there are issues with the relevant former employee’s performance. However, this EAT stated that Mr. Troy “was more than capable to perform any additional functions required by the Employer.”
The case has been appealed to the Circuit Court which will involve a complete re-hearing of the evidence. One might expect the decision of the EAT to be overturned, but until such time the EAT’s decision in this case is a marked change from previous practice.
James Scanlon is Head of Employment Law at Maples and Calder’s Dublin office and was assisted by Sinéad Egan, Associate. Should you have any queries on this or any employment matter please contact James or your usual Maples contact.