In the case of Kelly v. PGA European Tour [2021] EWCA Civ 549, the Court of Appeal (CA) confirmed that re-engagement was impracticable where an employer held a genuine and rational belief that the dismissed employee would not be capable of fulfilling the role.
A tribunal has a discretion to order re-engagement, taking into account: the wishes of the employee, whether it is practicable for the employer to comply with a re-engagement order and (where the employee has caused or contributed to his dismissal) whether it would be just to order re-engagement.
The Claimant, Mr Kelly, was dismissed over concerns about his performance and his unwillingness to “buy into” the newly-appointed Chief Executive’s vision and ideas. Importantly, during the dismissal process, the Claimant covertly recorded two of his dismissal meetings. This did not, however, come to light until after his dismissal. At the remedies hearing, the Employment Tribunal (ET) ordered that the Claimant be re-engaged in an alternative role as Commercial Director for China – a role which required the Claimant to speak fluent Mandarin (which he did not).
The Respondent appealed against this decision, arguing that the Claimant’s re-engagement was impracticable for two main reasons:
- first, the Claimant could not speak fluent Mandarin, undermining his capability for the role; and
- second, the covert recordings he had made had (amongst other things) caused a breakdown in trust and confidence between the Respondent and the Claimant.
The Respondent successfully appealed against the re-engagement of the Claimant, and the Claimant then brought his case to the CA.
The CA dismissed the Claimant’s case. In upholding the Employment Appeal Tribunal’s (EAT) decision, it placed particular emphasis on the following:
- In considering the practicability of re-engagement, the ET must consider whether the employer’s belief that the Claimant is not capable of performing the role in question is genuine and rational. It is not for the ET to substitute its own view on capability, which is what the CA found the ET had done here. The CA agreed with the EAT that, having regard in particular to the requirement to speak Mandarin, the Respondent’s belief as to the Claimant’s (lack of) capability was genuine and rational.
- It is similarly not for an ET to determine whether, in its view, there has been a breakdown in trust and confidence between the Claimant and the Respondent. If the Respondent asserts that there has been a breakdown in trust and confidence, it is for the ET to test whether this belief is both genuine and rational.
- When assessing the Respondent’s belief, the ET should consider all evidence available at the time of the remedies hearing. In this case, the Respondent was therefore able to rely on evidence that they were not aware existed at the time of the dismissal (i.e. the covert recordings). The CA held, on the facts of this case, that the Respondent’s concerns about the Claimant’s integrity and their resulting belief that the relationship of trust and confidence had been undermined were genuine and rational. It was therefore impracticable on this ground for the Claimant to be re-engaged.
- When considering whether the Respondent had a comparable vacancy for the purposes of re-engagement, the EAT was right to have considered whether there were any suitable vacancies as at the date of the remedies hearing. The tribunal was not, however, bound to consider positions that became available after the dismissal, but had since been filled (prior to the remedies hearing).
For any employers faced with dismissed employees seeking either re-instatement or re-engagement, this case is a helpful reminder of the fine, yet crucial, line between what is possible, and what is practicable.
Re-engagement and/or re-instatement may seem like attractive remedies to employees, since, if successful, they will be entitled to backdated pay from the date of their dismissal. If, however, an employer believes there to have been a breakdown in trust and confidence, they should take comfort in knowing that the tribunal will consider all evidence available, even if such evidence was not necessarily available, or in existence, at the date of dismissal. Additionally, where an employer truly believes (and that belief is rational) that an employee will not be capable of returning to or taking on a particular role, they will be able to rely on this case to support an argument against the employee’s re-instatement or re-engagement.
