An employer’s concerns about an employee’s capability and integrity made re-engagement impracticable.
Employment tribunals have the power to order the reinstatement or (if reinstatement is not appropriate) re-engagement of employees who have been unfairly dismissed. The effect of a re-engagement order is that the employee must be engaged (on terms decided by the employment tribunal) in employment that is comparable to the job from which the employee was dismissed or in other suitable employment.
Mr Kelly was employed by PGA European Tour as Group Marketing Director. PGA’s new chief executive officer had concerns about Mr Kelly’s commercial performance and his willingness to “buy in” to the CEO’s ideas. Discussions about an exit on agreed terms were not successful, and Mr Kelly was dismissed.
Mr Kelly brought claims of discrimination and wrongful dismissal (which are not considered in this article) as well as unfair dismissal. PGA conceded that the dismissal had been unfair, because it had not followed any procedure, and his claim was therefore successful. The employment tribunal ordered that Mr Kelly should be re-engaged to the role of Commercial Director, China PGA European Tour. This was in spite of the fact that the ability to speak Mandarin was an essential requirement of the role and Mr Kelly did not speak Mandarin, though he was willing to learn. PGA also said that it had lost trust in Mr Kelly’s integrity because he had covertly recorded meetings. However, the employment tribunal concluded that neither PGA’s concerns about Mr Kelly’s ability to speak Mandarin nor its concerns about trust and confidence in Mr Kelly made re-engagement impracticable. They stated that the trust issue could be overcome if “reasonable professional behaviour” was maintained.
PGA appealed the re-engagement order and the EAT allowed the appeal. The EAT held that the employment tribunal had impermissibly considered whether it believed that trust and confidence had been damaged. It should instead have asked whether PGA had a rational and genuine basis for believing that trust and confidence had been damaged. The employment tribunal had therefore erred in reaching its own view on this. The EAT also held that the employment tribunal had erred in substituting its own view on whether the ability to speak Mandarin was an essential requirement of the role it designated for Mr Kelly’s re-engagement. Requiring PGA to engage someone in a role for which they did not meet one of the essential requirements overstepped the mark and failed to give weight to the employer’s commercial judgement.
WHAT DOES THIS MEAN FOR EMPLOYERS?
Applications for re-engagement (and reinstatement) orders are becoming more frequent. This case follows earlier decisions. It is a useful reminder that where an employer genuinely and rationally believes that it has lost trust and confidence in an employee, or that it has good reason for considering that an employee is not qualified for a particular alternative role, they will not be required by an employment tribunal to re-engage that employee.