The Court of Appeal has considered whether it is practicable for an unfairly dismissed employee to be re-engaged, if the employer holds a genuine belief that they are not capable to perform the role.

Kelly v PGA European Tour [2021] EWCA Civ 559

Facts

Mr Kelly was dismissed as Group Marketing Director following the appointment of a new Chief Executive. His dismissal was held to be unfair by an employment tribunal, which ordered re-engagement. The employer’s argument that re-engagement was not practicable due to a lack of trust and confidence in Mr Kelly was rejected by the tribunal. It ordered that he be re-engaged in the role of Commercial Director (China), despite the requirement that the role should be filled by a mandarin speaker.

The Employment Appeal Tribunal upheld the employer’s appeal, finding that the tribunal had not properly considered whether the employer’s concerns about Mr Kelly’s capability and conduct were rational and genuinely held, and it had erred in ordering re-engagement to a role that he was not qualified for (see our previous summary). Mr Kelly appealed to the Court of Appeal.

Court of Appeal decision

The Court has dismissed the appeal, upholding the decision of the EAT.

It has confirmed that tribunals must consider on the evidence whether the employer genuinely and rationally believes that trust and confidence has been broken, meaning that re-employment is not practicable. Similarly, it is for the employer to show that it genuinely believes that, if re-engaged, the employee would not be able to perform the role to the requisite standards and that such belief is based on rational grounds. It will not be enough for the employer to simply assert that it does not believe the employee will meet the demands of the role.

The Court further rejected Mr Kelly’s argument that when considering the question of re-engagement, a tribunal should consider any vacancies that have arisen after the dismissal, even if such vacancies have been filled. The tribunal is only required to consider other comparable or suitable employment available at the date of the remedies hearing.

Consequences

Requests for re-employment (to the same job) or for re-engagement (to a suitable alternative) following a finding of unfair dismissal are relatively rare in practice, but this decision supports the position of the employer in showing why such an order is not practicable. Employers should be prepared to provide evidence of a genuine belief that trust and confidence has been broken and/or the individual is not capable of performing the role in question.