Tribunal Tale – Re-engagement as a Tribunal remedy was not reasonably practicable

The case of Kelly v PGA European Tour involved Mr Kelly who had worked as the Group Marketing Director for the PGA European Tour. He was dismissed due to his performance. The Tour admitted that it was an unfair dismissal as a fair procedure had not been followed. The tribunal decided the appropriate remedy was to order that he be re-engaged as an employee by the Tour. Re-engagement is when the Claimant is given a job that is comparable to the job from which they were dismissed. This is separate to a reinstatement order which is when the Claimant is placed back into the same job with the same terms as before the unfair dismissal. These remedies are seldom sought and even when they are, they are seldom granted. Where a Claimant seeks re-engagement, the employer will usually argue that it is not reasonably practicable for the Claimant to be re-engaged in the way that they seek.

The Tour argued that this would not be practicable here as they had lost trust and confidence in the Claimant as they had legitimate concerns about his capability. They had also discovered he had been covertly recording meetings. They further argued that knowledge of Mandarin was essential to the role to which he was seeking to be re-engaged and the Claimant had no such knowledge.

The employment tribunal decided that re-engagement was practicable and ordered that the Claimant be appointed to the role of Commercial Director China, as he had expressed interest in this position. They also noted that he would be willing to learn Mandarin. However, on appeal, the Employment Appeal Tribunal rejected the argument that when assessing practicability trust and confidence can only be considered in conduct cases. They also decided that the employment tribunal had substituted their views for the employer’s view which they are not entitled to do. It was not in their remit to decide that a knowledge of Mandarin was not essential. The EAT therefore concluded that re-engagement should have been refused.

On further appeal by the Claimant, the Court of Appeal upheld the EAT’s decision. It held that where the employer argues that it is has lost trust and confidence in the former employee, the tribunal should consider whether that loss of trust is genuine and rational. It also held that when considering the practicability of re-engagement, a tribunal should consider whether the employer’s view that the former employee is not up to the job is genuine and rational. Here, the employer’s concerns about the Claimant’s inability to speak Mandarin were justified.

For employers more generally this case highlights the importance of accurate record keeping. If an employer seeks to argue that a remedy of re-engagement is not practicable because of a breakdown of trust and confidence then it should be aware that the tribunal will not simply accept this at face value.

If you have any questions on any of the issues mentioned in the above article, please contact Natalia Milne.

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