The tribunal had ordered D to reinstate Ps (they had been sacked for being shop stewards) but D failed to comply with the order. The CA upheld the tribunal’s order of reinstatement but rejected the claim of additional damages against D on the grounds that it had not so far been practicable to effect the order (due to lack of vacancies, would be disruptive to workforce and expensive).
Neill LJ: In deciding whether or not to order reinstatement/reengagement the tribunal makes a provisional assessment about whether these are practicable remedies. However in deciding whether additional damages for failure to comply with a court order should be awarded, the facts subsequent to the order are to be viewed, and here it was clear that reinstatement wasn’t possible. Due weight should be given to the commercial/managerial assessment of judgment and the standard of ‘practicable’ (in deciding whether or not to order reinstatement) is higher than merely what is ‘possible’. This shows that the remedies of reengagement or reinstatement are rarely successful due to high threshold of practicability and weight given to managerial discretion. C, E & M say these remedies are used by the tribunal in less than 5% of cases.