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Reinstatement demonstrated by Santander share & Nigel Hopkins v Chagger
By: Simon King

Reinstatement, the re-employment of an employee back into the position from which he was unfairly dismissed (as if the unfair dismissal had never taken place), is one possible remedy for unfair dismissal in the UK. It is demonstrated in the high-profile Chagger v Abbey National plc & Hopkins (2006) case, where the Employment Tribunal found that both Abbey Santander price (the Spanish-owned UK high street bank being re-branded as Santander de, and being part of the enormous Banco Santander Central Hispano Group - BSCH) and Mr Hopkins had racially discriminated against Mr Chagger in respect of his dismissal. The Employment Tribunal ordered Abbey Santander de to reinstate Mr Chagger. However, Abbey Santander refused to reinstate him. Further to Abbey Santander Central's refusal to comply with the reinstatement order, the Employment Tribunal went on to order Abbey Santander 2009 to pay Mr Chagger the record-breaking £2.8 million compensation for his loss. Abbey Santander share had employed Mr Chagger as a Trading Risk Controller. He earned around £100,000 a year and reported into Nigel Hopkins. Mr Chagger was of Indian origin. Abbey Grupo Santander ended Balbinder Chagger's employment in 2006, giving redundancy as the reason. Mr Chagger, however, believed that the actual reason behind his dismissal was race discrimination.

Of the various remedies for unfair dismissal, UK law regards reinstatement as the primary one; because it permits the unfairly dismissed employee to continue to enjoy in the future both the economic benefits and the mental satisfaction of the position. If it is not practicable to reinstate the employee, then reengagement is regarded as the next preferred remedy. Reengagement is re-employment of the unfairly dismissed employee into a different position to the one he was dismissed from (on terms and conditions as similar as is reasonably practicable to the ones he was dismissed from).

When an Employment Tribunal finds unfair dismissal, it will ask the wronged employee whether he wants to be reinstated. If the employee wants to be reinstated, then the Employment Tribunal has total discretion as to whether or not to make an order for reinstatement. The Employment Tribunal will take into account whether it is practicable for the wronged employee to go back to work for the employer. Where the wronged employee was in someway also to blame for the dismissal, the Employment Tribunal will take into account whether or not it would be fair to order the employer to reinstate him.

Employment Tribunals hardly ever make reinstatement orders, even though it is the primary remedy for unfair dismissal, because the reality is that the process of litigation is often vexatious and leaves the relationship between the employer and the employee so damaged as to make it impossible for them to work together again. Only rarely do Employment Tribunals find that the relationship remains workable.

If an Employment Tribunal orders reinstatement, then it is open for the employer to comply with the order. If the employer refuses to comply with the reinstatement order and the Tribunal is dissatisfied with the employer's reasons, then the employer will have failed to comply with what the law regards as the ideal solution to remedy the wrong that the employer committed. Failure to comply with a reinstatement order opens the way for the Employment Tribunal to award increased levels of compensation. The Employment Tribunal will then proceed to remedy the wrong doing with a compensation award.

To request reinstatement may prove to be tactically advantageous for an unfairly dismissed employee because the employer's failure to comply opens the way for the Employment Tribunal to compensate him in full for all his loss of earnings from the time of the unfair dismissal to the time of the reinstatement order; any statutory limit on the compensation amount would be lifted. Therefore, where the wronged employee's losses to the time of the hearing exceed the statutory limit, then reinstatement should be considered seriously. Also, employers usually dislike reinstating an unfairly dismissed employee so much that a credible request for reinstatement could open the way to higher settlement offers from the employer. However, if the employer complies with the reinstatement order, then the employee will have to comply also, and return to work as usual.

The Chagger v Santander Abbey case did not finish at the Employment Tribunal stage. Abbey Grupo Santander and Mr Hopkins appealed to the Employment Appeal Tribunal (EAT) against the original Employment Tribunal's findings of race discrimination and the £2.8 million award. In 2008, the EAT upheld the original Employment Tribunal's finding that both Santander and Mr Hopkins had discriminated against Mr Chagger. However, the EAT did accept Abbey's appeal on the £2.8 million compensation award and remitted it to the original Employment Tribunal for reconsideration. Then the case was further appealed to the Court of Appeal (the second highest court in UK). The Court of Appeal's List of Hearings showed the appeal was heard on 7 and 8 July 2009. The court's records were not available at the time of writing this article. The 11KBW set of barristers' chambers (representatives of Santander Abbey and Mr Hopkins in the hearing), had reported that the Court of Appeal hearing was to be only about compensation (not race discrimination also). That seems to suggest that the committed by Abbey National Santander and Mr Hopkins of race discrimination was finalised by the EAT (which upheld the original Employment Tribunal's finding that Mr Hopkins and Santander Abbey Group had racially discriminated against Mr Chagger), and that Mr Chagger had appealed against the EAT's decision to remit the compensation award back to the Employment Tribunal stage for reconsideration.

Article Source: http://www.excitingdestiny.com/articles

Abbey Santander de & Hopkins v Chagger and Banco Santander Central Hispano advances UK Colour Discrimination Law

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