Case update (5):  Unfair dismissal – remedy of re-engagement

What do we already know?

We updated you in our October 2020 Newsletter Case update (2): Unfair dismissal – remedy of Re-Engagement that the EAT found in Kelly v PGA European Tour that a Tribunal should not order re-engagement where the employer holds the rational belief that trust and confidence has broken down.

The employee appealed to the Court of Appeal.

What’s new?

The Court of Appeal has confirmed the EAT’s decision that re-engagement is impracticable where an employer holds a genuine and rational belief that the dismissed employee would not be capable of fulfilling the role.  However, it is not be enough for the employer to simply assert that it does not believe the employee will meet the demands of the role.

In considering the practicability of re-engagement, the Tribunal must consider whether the employer’s belief that the employee is not capable of performing the role is genuine and rational. It is not for the Tribunal to substitute its own view on capability.  It is similarly not for a Tribunal to determine whether, in its view, there has been a breakdown in trust and confidence between parties. If the employer asserts that there has been a breakdown in trust and confidence, it is the Tribunal’s job to test whether this belief is both genuine and rational.

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.

Comment

Re-engagement is an attractive remedy to an employee, since, if successful, they will be entitled to backdated pay from the date of their dismissal. This case is helpful to employers faced with such application as 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-engagement.

However, 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.