Siobhan Murphy
Posted on 6 May 2021

When will re-engagement be practicable following a finding of unfair dismissal?

Speed read: The Court of Appeal has upheld the Employment Appeal Tribunal's decision that an order for re-engagement should not be made by an Employment Tribunal where the employer has concerns regarding the Claimant's capability and conduct which are rational and genuinely held, so as to undermine trust and confidence

Kelly v PGA European Tour [2021] EWCA Civ 559

Background

In September last year, we posted an article on the Employment Appeal Tribunal's (EAT) decision that an employer's lack of trust and confidence in an employee's capability was a relevant factor for an Employment Tribunal (ET) to consider when assessing whether re-engagement is a practicable remedy following a finding of unfair dismissal. Our article can be found here.

In its judgment, the EAT emphasised that it is a well-established principle that a genuine loss of trust and confidence could lead to a conclusion that the remedy of re-engagement would be impracticable. This should be considered by evaluating whether the employer had a genuine view, which was founded on a rational basis that there had been such a loss.  

It was held that, in this case, the ET had not focused on whether PGA had genuine concerns regarding the Claimant's capability and conduct which were rational and genuinely held so as to undermine trust and confidence. Instead, the ET held that an order of re-engagement, which put the Claimant into the role of commercial director in China for PGA, was practicable. This was despite the fact that an essential requirement of the role was the ability to speak Mandarin, which the Claimant could not do. Instead, the ET considered that the Claimant's willingness to learn and his proficiency in foreign languages meant that it was practicable. This decision was held to fall on the wrong side of the line between what is practicable and what is possible. PGA's own view was overlooked. As such, the EAT considered it was clear that re-engagement should have been refused, and substituted an order to that effect.

The Court of Appeal

The Claimant subsequently appealed this decision to the Court of Appeal, which has since upheld the EAT's decision. The ET had erred in ordering re-engagement to a role for which the Claimant did not meet an essential requirement and had impermissibly reached its own view on whether concerns about the employee's capability and integrity had undermined trust and confidence instead of considering whether PGA's view was genuine and rational.

In addition, the Court of Appeal gave guidance on interpreting the language of "trust and confidence", stating that it simply connotes the common sense observation that it may not be practicable for an employee to return to work where their employer lacks confidence in them due to their conduct or ability to do the job to the required standard.

What can employers take from this?

Whilst this case will be largely applicable to unfair dismissal claims, in the event that an employer wishes to avoid an order of reinstatement or reengagement following a decision to dismiss, it is particularly important to keep written records when there are capability or conduct concerns regarding an employee. These records should help to clarify the reasons for the concerns and the steps being taken to address them. This type of contemporaneous evidence is invaluable when seeking to argue that there is a genuine and rational belief that trust and confidence has been undermined.