MacKenzie v The University of Cambridge

Factual and Procedural Background

The Plaintiff was employed by The University as a lecturer until her dismissal effective 31 December 2013. She brought a claim in the employment tribunal alleging unfair dismissal under the Employment Rights Act 1996 ("the 1996 Act"), which the University conceded. The Plaintiff elected to seek re-engagement rather than a compensatory award. The University opposed the re-engagement order on grounds of impracticability, but the tribunal rejected this, finding no breakdown in mutual trust and confidence between the Plaintiff and the University generally. The tribunal ordered the University to re-engage the Plaintiff as a University Teaching Officer and specified terms including salary and back pay, with compliance required by 17 February 2016. The University declined to re-engage and instead paid the Plaintiff an amount equivalent to the maximum compensatory and additional awards under the statute.

The Plaintiff commenced judicial review proceedings challenging the University's refusal to comply with the tribunal's re-engagement order, seeking quashing of the refusal and a declaration of its unlawfulness. Permission for judicial review was initially refused twice but later granted and retained in the Court. The core issue is whether the Plaintiff is entitled to relief in the High Court to enforce the tribunal's re-engagement order, including under the Human Rights Act 1998.

Legal Issues Presented

1. Whether a tribunal order for re-engagement under sections 113-115 of the Employment Rights Act 1996 creates an enforceable right in the employee to be re-engaged by the employer.
2. Whether the High Court has jurisdiction to grant relief enforcing a tribunal's re-engagement order or whether the statutory remedies under the 1996 Act are exclusive.
3. Whether the absence of an enforcement mechanism for re-engagement orders amounts to a breach of the Plaintiff’s rights under articles 6 and 13 of the European Convention on Human Rights and article 1 of Protocol 1.

Arguments of the Parties

Appellant's Arguments

• The re-engagement order under section 115 creates a substantive right and corresponding obligation enforceable in the courts.
• Common law principles require effective remedies for breach of rights, supported by the maxim ubi ius ibi remedium.
• European Court of Human Rights case law mandates effective enforcement of reinstatement orders to comply with articles 6 and 13 of the Convention and article 1 of Protocol 1.
• The absence of a statutory enforcement mechanism within the employment tribunal system for re-engagement orders necessitates recourse to the High Court for enforcement.
• Although specific performance of employment contracts is generally disfavoured, the tribunal found re-engagement practicable in this case, supporting enforceability.

Respondent's Arguments

• The statutory scheme under the Employment Rights Act 1996 is self-contained and exclusive, granting the employment tribunal exclusive jurisdiction.
• Section 117 provides the sole enforcement mechanism for non-compliance with re-engagement orders, requiring compensatory and additional awards rather than specific performance.
• Allowing enforcement by the High Court would create an unacceptable hybrid jurisdiction overlapping with the employment tribunal’s exclusive domain.
• Parliament deliberately avoided empowering courts to order specific performance of employment contracts due to policy reasons and the traditional reluctance to compel continued employment.
• European Convention rights do not require an absolute right to specific enforcement of re-engagement where the statutory scheme provides compensatory remedies.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the statutory provisions governing unfair dismissal and remedies, focusing on sections 113-117 of the Employment Rights Act 1996. It held that the re-engagement order does not create an absolute, enforceable right to be re-engaged but rather imposes on the employer a choice: either to comply with the order or to pay compensatory and additional awards as provided by section 117. The Court rejected the Appellant's argument that the High Court should have jurisdiction to enforce re-engagement orders, emphasizing the self-contained and exclusive nature of the employment tribunal's jurisdiction and remedies.

The Court reasoned that allowing enforcement by the High Court would create a problematic hybrid jurisdiction, requiring the Court to revisit and potentially modify tribunal orders, which is contrary to the statutory scheme. The mandatory nature of section 117 awards further supports the conclusion that these awards are the exclusive remedy for non-compliance, not specific performance. The Court also noted the absence of statutory machinery for specific enforcement reflects Parliament’s policy choice to avoid compelling ongoing employment relationships.

Human Rights Act arguments were considered but found inapplicable because the domestic law does not confer a right to specific enforcement of re-engagement orders; thus, no breach of Convention rights arises. Strasbourg jurisprudence cited by the Appellant was distinguished on the basis that those cases involved domestic laws that did provide for enforceable reinstatement rights, unlike the present statutory framework.

The Court found the orthodox interpretation of the statutory scheme, supported by longstanding authority and policy considerations, to be correct. The absence of a right to specific performance means no breach of rights requiring an effective remedy exists, and the statutory compensatory and additional awards suffice as enforcement mechanisms.

Holding and Implications

The Court DISMISSED the Plaintiff's application for judicial review.

This decision confirms that under the Employment Rights Act 1996, orders for re-engagement made by employment tribunals do not create enforceable rights to specific performance enforceable by the High Court. Instead, the statutory remedy for non-compliance is limited to compensatory and additional awards payable by the employer. The ruling underscores the exclusivity and self-contained nature of the employment tribunal jurisdiction and remedies, and it affirms that the absence of specific enforcement mechanisms does not violate the European Convention on Human Rights in this context. No new precedent altering the statutory scheme was established; the decision reinforces the orthodox understanding of the law.