Like hurricanes in Hertfordshire, reinstatement, or reengagement, hardly ever happens as a consequence of a successful employment tribunal claim for unfair dismissal.
Re-instatement (when the tribunal orders the employer to return the ex-employee to the same role) or re-engagement (returning the employee to a different role with the same employer), are remedies which are very rare.
Many ex-employees will, of course, have no appetite for returning to their former place of work after bringing proceedings, which could have been lengthy, acrimonious, or both. A previous article illustrated our thoughts at length and can be found here.
It continues to be very rare, which is why the recent case of Bradley Jones v JP Morgan Securities plc, involving re-engagement, is so interesting. The case and the full judgment can be accessed here.
Mr Jones was a Financial Analyst and Cash and Equities Trader with JP Morgan, a London-based investment bank. He was dismissed for gross misconduct in January 2020 for alleged ‘spoofing’ which is illegal and contrary to banking regulations. Spoofing in this context is a form of market abuse in which traders place orders to buy or bids to sell assets where they have no intention of following through. This creates an illusion of false demand or pessimism in the market which, for the trader with the inside information, gives opportunities to profit from.
The alleged ‘spoofing’ carried out by Mr Jones took place in 2016 and, following an investigation, the bank decided at the time to take no further action. However, following criminal charges for market manipulation (including spoofing) being brought against traders at the bank’s USA affiliated business and significant fines imposed, the bank carried out an internal review of its market conduct, picked up Mr Jones’ case again. On this review, it dismissed him.
He brought a claim for unfair dismissal and the employment tribunal determined in favour of Mr Jones. It found his dismissal had been unfair and that the real reason he was dismissed was JP Morgan’s desire to appease its regulators by showing it was “cleaning up its act”.
In an unusual move, the tribunal ordered the bank to re-engage him at his request. The bank had argued that it was not practical for Mr Jones to be re-instated into his old role as his team had taken up his duties and, due to redundancies having been made in his team, there was no capacity for Mr Jones to re-join. However, the tribunal preferred Mr Jones’ evidence that he would not be able to work in another regulated role in the financial services sector in the UK due to the bank’s insistence that, despite the tribunal’s findings, it would be required to provide him with a negative regulatory reference. It also preferred Mr Jones’ practical solution that he be re-engaged by an associated employer in Hong Kong, rather than re-instated.
The tribunal also awarded Mr Jones almost £1.5 million for lost earnings. Although there is usually a cap on compensation for unfair dismissal claims (currently £89,493), where an employee is re-engaged the earnings they lost between the date of their dismissal and their date of re-engagement is not subject to that cap. This was a point raised by the bank, who argued that Mr Jones only requested to be re-engaged so that he could benefit from the cap being lifted. However, the tribunal gave this short shrift.
It is important to note that tribunals very rarely deems re-engagement an appropriate remedy. In this case it did so here due to the specific regulatory context in which Mr Jones had worked, and wished to continue working. Although it is a remote prospect for most employers defending unfair dismissal claims, as this case shows, it may be more likely to arise where there are regulatory consequences which have the possibility of affecting the individual’s future prospects of employment.