Having failed to offer a claimant his job back, as instructed by a tribunal, Scottish & Southern Energy plc (SSE) has been told that it must pay Donald Nutt £226,352, increased from the £140,696 originally awarded.

Mr Nutt was dismissed by the company for gross misconduct in 2012 after a series of disagreements regarding health and safety and shift patterns. His employment tribunal hearings took place between December 2015 and November 2016.

Judge Ian McFatridge told the Big Six energy company that it had “made a complete mess of the appraisal and disciplinary process”.

SSE claimed Mr Nutt was sacked due to a “breakdown in trust and confidence”, however Judge McFatridge found there had been “genuine unfairness” shown to the worker.

Rather than following modern employment relations practice, he went on, the company’s HR processes were “reminiscent of a show trial in the former Soviet Union”.

"At many instances during the meeting”, he went on, “it appears that SSE not only wished Mr Nutt to acknowledge that he was wrong, but express gratitude to SSE for treating him as they had”.

The tribunal accordingly ordered SSE to re-engage the claimant no later than 16 January 2018 although this date was changed following further arguments by the company.

While Mr Nutt’s representatives made various efforts to engage with the company in this regard, it did not respond. On 20 February 2019, which was the revised date for compliance, SSE lodged an appeal. It was observed that this was the final day for doing so.

The appeal was finally dismissed at a Rule 3:10 Hearing on 26 October 2018.

SSE then confirmed that it would not be re-engaging Mr Nutt and asked the tribunal to assess the appropriate level of compensation. The full text of the reply, explaining the amounts awarded, can be found at https://bit.ly/2KmtRTT.

Comment by Peninsula Associate Director of Legal, James Potts

It is very rare in unfair dismissal cases that an employment tribunal will make an order compelling an employer to re-engage the employee. This is because trust and confidence in the employment relationship has usually broken down to the point where ordering an employer to take back an employee would be impractical.

That being said, this judgment serves as a useful illustration of how tribunals will process failure to comply with a tribunal order to re-engage.

Although employers may be tempted to not follow the order and simply pay the additional compensation to rid themselves of the employee, they should be wary of the significant overall figure that they could end up paying out as a result.

It should be remembered that an order for re-engagement does offer a degree of flexibility; the employee does not have to be put back in their previous role and can report to a different manager in a different part of the organisation.

There is also a further reiteration in this case of how seriously tribunals will respond in situations where the employers have handled a disciplinary process poorly.

A disciplinary should be approached in a fair and reasonable manner, with failure to do so potentially leading to substantial tribunal awards for unfair dismissal, even if the employee’s actions would still have led to a decision to dismiss.

Last reviewed 12 April 2019