Re-Engagement should not be ordered when trust and confidence has broken down

Most Employment Tribunal claimants are solely seeking financial compensation for their past and future loss of earnings.  However occasionally a claimant will seek, and the Tribunal will make, an order for reinstatement of the claimant to their former position or re-engagement in a new position.   This was the case in the recent Court of Appeal matter of Kelly v PGA European Tour (PGAET). 

Mr Kelly had been a Group Marketing Director for PGAET for a number of years and following his dismissal brought claims for age discrimination and unfair dismissal.  The age discrimination claim was rejected by the Tribunal but PGAET conceded that the dismissal had been unfair. 

Mr Kelly’s request for reinstatement to his former role was not possible as it no longer existed so instead he sought and was granted, re-engagement to the position of Commercial Director, China.

The PGAET objected on the basis that Mr Kelly could not speak, read nor write Mandarin which was an essential part of the role. 

Further, it has transpired in the course of proceedings that Mr Kelly had made covert recordings whilst an employee which was alleged by PGAET to amount to a breakdown in trust and confidence. 

The Tribunal held that Mr Kelly’s willingness to learn Mandarin, and his proficiency in other languages, meant that it was practicable for him to be re-engaged in the China role.  The Tribunal also held that the issue of trust and confidence was not considered sufficiently significant. 

PGAET appealed and the Employment Appeal Tribunal (EAT) found in its favour.  Mr Kelly then appealed to the Court of Appeal.  He was unsuccessful as the Court of Appeal upheld the EAT decision. 

It was held that engaging a non-Mandarin speaker in a role where Mandarin was required was perverse.  Further, the suitability of re-engagement is not limited only to the facts available to the employer at the time of the dismissal.  All of the evidence available at the time of the remedy hearing is to be considered so events the employer was unaware of at the time of dismissal (in this case the employer’s knowledge that Mr Kelly had made covert recordings) but subsequently discovered can be taken into account.

This blog was brought to you by Tess Barrett, solicitor at Didlaw.