~ Friday 15th December 2006, 12:30 p.m. ~
‘Mr Singh, do you choose reinstatement or compensation?’ the chairman asks addressing me directly from his seat at the judges’ bench high up on the raised platform at the head of the courtroom. He sits in the centre seat, the back of which protrudes twelve inches above the seats of the two judges flanking him.
‘Hmm,’ I contemplate sitting in the public gallery immediately behind my counsel and her assistant, on the far right hand side of the courtroom, feeling relieved and immensely grateful that the tribunal upheld every single one of my claims against Neil and the bank.
Neil, having just listened to the tribunal rule that he discriminated against me racially in dismissing me from my job, sits calmly maintaining a poker face. He awaits my answer, as do Simon, Veronica, and the bank’s other officers sitting with him in the public gallery immediately behind their counsel, on the far left hand side of the courtroom. Their counsel, sitting at her desk with her assistant beside her, stands by for my reply. The members of the public, sitting behind us in the gallery, anticipate my response. The two judges flanking the chairman look down at me, waiting.
‘Er,’ I stall.
‘Mr Singh,’ the chairman says looking up at the clock on the wall to his right, ‘your answer may wait until after lunch, over which time you may choose to take counsel’. Addressing the two counsels, he says, ‘it is now twelve-thirty. All parties are to reconvene for one-thirty. The hearing is adjourned’.
‘All stand,’ the courtroom attendant cries out.
We all rise to our feet. The three judges rise from their seats, turn to their right, file towards the door to their chamber in the wall behind the judges’ bench, and disappear through it. The people in the public gallery begin to make their way along the aisles towards the door at the back of the room to exit. My counsel, her assistant, and I join in the flow. Outside the courtroom, we make our way along the corridors to the claimants’ waiting room, and go in. There are three other parties in there already, counsels and claimants with friends and family members. We take up the free seats around a low, circular-shaped coffee table in a corner at the far end of the room, with the full-length window looking out on to Kingsway.
‘Congratulations on winning your case outright, on every single point,’ my counsel says with a sense of heartfelt joy in her face, ‘and with a unanimous tribunal!’
‘Congratulations to you too,’ I reply smiling triumphantly. ‘And, thank you! It wouldn’t have been possible without you, and also without my solicitor’s good work. He’ll be waiting on tenterhooks. We’d better phone him and tell him the great news’.
‘I’ve already texted him,’ she says. ‘He’s over the moon, and very relieved. He sends his congratulations. Celebrations will have to wait, I’m afraid. We need to get ourselves ready for the next hearing session. We don’t have much time’.
‘Yes,’ I reply. ‘So,’ I say getting down to business, ‘reinstatement means the bank re-employs me back in my Market Risk Controller role it dismissed me from, as though the dismissal never happened?’
‘Yes,’ she replies, ‘if that’s possible. If not, then it means re-employing you in another role, on terms and conditions as close as possible to your original role’s’.
‘I see,’ I reply. ‘Does it also mean I’ll get paid all of the back pay I’ve missed out on since I was dismissed?’
‘Yes, it’ll make good all of your back pay,’ she confirms.
‘That sounds great,’ I say.
‘Reinstatement,’ she continues, ‘is the primary remedy in law for a wrongful dismissal. It has the status of primary remedy because it restores the full value a dismissal deprives a claimant of. Compensation can’t do that. Hence, compensation is the secondary legal remedy’.
‘What do you mean?’ I ask.
‘Compensation can only restore the economic and financial values your dismissal deprives you of,’ she says, ‘like, your salary, bonuses, healthcare, and any other benefits that can be monetised. It can’t restore the non-economic kinds of values you got out of your employment, the emotional and the psychological values, like, the enjoyment of performing the job, social status, self-esteem, and so on. Those things don’t have a monetary value. Compensation can’t cover them. Reinstatement restores all those kinds of things as well as the economic values. Reinstatement is the superior remedy, in that respect’.
‘I see,’ I reply.
‘Although reinstatement is the primary remedy for an unfair dismissal,’ she continues, ‘a tribunal can’t consider it unless the claimant authorises it to do so. A claimant might not want to be reinstated after all that’s happened. Most claimants don’t. So, the tribunal needs the claimant’s explicit consent to be able to consider reinstatement. That’s why the chairman started the remedy hearing by asking you whether you want to be reinstated or not?’
‘Okay, I understand,’ I reply.
‘If you choose reinstatement,’ she continues, ‘then that doesn’t automatically entitle you to be reinstated. Your choice merely authorises the tribunal to be able to consider reinstatement as a possible remedy. It has absolute power and discretion, though, as to whether to grant or refuse you your choice’.
‘How does it decide?’ I ask.
‘Based on whether reinstatement can actually work in the circumstances,’ she says. ‘It’ll look at things like, whether your motives for wanting reinstatement are sincere, and whether workable relationships remain after all that’s happened. It’ll investigate whether you’re in any way, even partly, to blame for your dismissal. If it finds you are, then it’d hardly be right to reinstate you’.
‘True,’ I reply. ‘But, I’m not to blame’.
‘It’ll also consider the respondents’ points of view,’ she continues. ‘They might not want to reinstate you. Then, it’ll need to give them the chance to put their case and to show good cause for not wanting you back’.
‘Okay,’ I say. ‘The other option is to forget reinstatement altogether and go straight to compensation’.
‘Yes,’ she says, ‘and that’s what I recommend. Employers hardly ever want back employees who litigated against them, and tribunals hardly ever award reinstatement. The nature of employment disputes and litigation is vexatious. It tends to ruin completely the relationships between the parties. It renders the relationships unworkable. There’s usually residual hurt and bitterness lingering on both sides, meaning reinstatement won’t actually work in practice. In my entire twenty-year career so far, I’ve never managed to convince a tribunal to award reinstatement to any of my clients’.
‘I see,’ I reply. ‘That all sounds reasonable enough’.
‘Besides,’ she continues, ‘even if a tribunal orders reinstatement, the order is unenforceable. The bank doesn’t have to comply with it because there’s a higher rule in this country that says parties can’t be forced together if any one of them doesn’t wish it. My advice is, save yourself the time and the considerable costs of a hearing on reinstatement. Go straight to compensation’.
‘If I do get reinstated,’ I say, ‘then I’ll be back in my job. I’ll be employed again. I’ll be paid my back pay, and my future will be before me as though I were never dismissed. I won’t suffer any damages, except all the money I’ve spent so far on seeking justice’.
‘Correct,’ she says. ‘In employment tribunal cases, tribunals can’t order the loser to pay the winner’s costs. All the costs you incur in seeking justice are yours to bear, I’m sorry to say’.
‘Right,’ I reply.
‘Even though they’ve been found guilty of every single complaint against them,’ she says, ‘neither Neil nor the bank have even apologised. The last thing they’ll tolerate is having you back. They’ll object to reinstatement, for sure. Then, the tribunal will conclude the relationships aren’t workable, because that’s easy and usual for tribunals to conclude. It won’t award you reinstatement. Then, the remedy will have to proceed to compensation. You may as well move to compensation right now and save yourself the time and the significant costs of a detour through reinstatement’.
‘Reinstatement’s an opportunity to bring things to an amicable end, right here, right now,’ I say. ‘There’s great value in that. There’ll be no need to have a risky, and probably lengthy, hearing on compensation. Reinstatement will end litigation immediately. There’ll be no risk of appeals. No need to incur any more legal fees. I’ve been unemployed for eight months now. I have no money coming in at all, and I’m gushing money on legal fees. My savings are running out fast. I can’t afford to keep litigating for much longer. I’m worried. Neil and the bank have nothing to lose by reinstatement, and much to gain. As their employee again, I’ll be under a duty not to speak out against them. They’ll have power and control over me again. If they want, they could exploit the position to better engineer my dismissal at some future date, or drive me into an untenable situation where I just decide I have no choice but to resign and leave. The benefits to them are great. They’re a corporation. To them, I’m just a cost figure in a spreadsheet that they need to manage and contain. They’ve already spent a fortune on me, just to end up achieving a massive, public fiasco. Reinstatement’s a safe and cheap option for them. It’s an opportunity for them to take complete control of the situation and manage it privately, out of sight. The risks are all to me. They’d be mad not to take it’.
‘You’re assuming they’ll be rational,’ she says. ‘No rational employer would have let things come this far; but, they did. Reasonable employers would have stood up by now and apologised; but, they haven’t. They’re neither rational, nor reasonable’.
‘Hmm,’ I sigh.
‘They’re not interested in doing the right things, or the amicable things,’ she continues. ‘They’re only interested in getting their way, by any means it takes. They regard the law and the procedures of the land as things to be gotten around. They’re quite happy to swear sincerely to tell the truth and then, proceed to lie blatantly. They think the law’s there to control everyone else, while they get around it and do whatever they want. They’re arrogant, shameless, and belligerent. They believe they’re untouchable. They thought you could never win against them. You’re the first employee they’ve not managed to quash, the first to hold them to account. The tribunal’s decision against them only riles them. My advice is, forget reinstatement, save your money’.
~ Friday 15th December 2006, 1:30 p.m. ~
‘Mr Singh, do you choose reinstatement or compensation?’ the chairman asks me starting the reconvened remedy hearing.
‘I choose … … …
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