Employment and Immigration Update - Re-engagement following unfair dismissal


25 September 2020

In this decision, the Employment Appeal Tribunal (EAT) has considered whether an employment tribunal was wrong to order the re-engagement of an employee in which the employer had lost trust and confidence.

Kelly v PGA European Tour EAT/0285/18

Facts

The claimant was employed as Group Marketing Manager. He was dismissed by the company’s new Chief Executive following concerns about his performance and his willingness to take on board new initiatives. The company conceded that the dismissal was unfair, as a fair procedure had not been followed. The tribunal ordered the claimant’s re-engagement to the role of Commercial Director, for which speaking Mandarin was an essential requirement, even though the claimant did not speak Mandarin. The tribunal considered that any trust and confidence issues were not significant enough to make the re-engagement impracticable.

The employer appealed to the EAT.

EAT Decision

The EAT has upheld the appeal against the re-engagement order, remitting the case to the tribunal to determine the level of compensation.

The question of whether it is practicable to order re-engagement depends on the employer’s opinion on the question of trust and confidence, not that of the tribunal. The tribunal had erred in reaching its own view, rather than testing the genuineness and rational foundation of the employer’s view on trust and confidence. It had also erred in its decision that the claimant’s willingness to learn Mandarin meant that re-engagement was practicable, since it was an essential requirement of the role. It could not require an employer to engage someone in a role for which they did not meet an essential requirement.

Consequences

This decision is helpful for employers as it reiterates the importance of the employer’s opinion on the question of trust and confidence when a tribunal is considering the practicability of making an order for reinstatement. It is not the tribunal’s role to determine for itself whether re-engagement is practicable.

In practice, claimants rarely seek reinstatement (to the same job) or re-engagement (a suitable alternative), but in an economic climate where a new job is difficult to find it is possible that we will see an increasing number of such requests from claimants.

These articles are from the September 2020 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts' Employment Law Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at September 2020.