Employers and employees alike can often forget the very powerful remedy an employment tribunal has in unfair dismissal cases – the ability to order reinstatement of the claimant (to the previously held role) or re-engagement (to a different role). Indeed, the employment tribunal should consider whether it should make such an order before making an order for compensation. This decision is based on a number of factors including any contribution to dismissal by the employee, and whether it is practicable for the employer to reinstate or re-engage.
Whilst employers can choose not to comply with such orders, and instead face a higher financial penalty, a carefully considered defence to any claimant seeking reinstatement or re-engagement can avoid the tribunal ordering this remedy in the first place.
Putting re-engagement to the test
The case of Kelly v PGA European Tour UKEAT/0285/18/DA is an interesting example of such a situation. Mr Kelly was employed by the PGA European Tour as Group Marketing Director, but was dismissed from his position further to a strategic review of the senior management team. The employer in this case actually admitted that Mr Kelly's dismissal was unfair, based on a lack of procedure followed.
Mr Kelly, an employee of over 25 years' standing, sought reinstatement as his remedy to being unfairly dismissed. This was refused by the employment tribunal, but re-engagement was ordered, to the alternative role of Commercial Director, China PGA European Tour. This decision was appealed by both parties on various grounds. However, those of interest for this update related to the employer's appeal against the re-engagement order.
It was argued by the employer that it should not be considered reasonably practicable to order reinstatement or re-engagement, primarily because there had been a loss of trust and confidence in the claimant by the employer. This was down to Mr Kelly covertly recording the meetings at which his dismissal had been discussed and effected, and also concern about his ability to undertake the alternative role.
The Employment Appeal Tribunal found that the tribunal had not given proper consideration to whether this should prevent re-engagement. It held that a tribunal must consider whether the employer genuinely and rationally believes that trust and confidence has been broken, so that re-employment is not practicable: that is, not capable of being carried into effect with success. An employer cannot merely assert that this is the case in a self-serving way, in order to successfully resist the order sought. The tribunal should test and evaluate against the evidence before it, whether the employer's stated belief is both genuinely and rationally held. But it must keep in mind that the ultimate question is about whether it is practicable for this employer to re-employ this employee.
As such, it found that the employer in this case had a genuine and rational belief that it could not have Mr Kelly back in its employment, in light of the evidence given about the impact of Mr Kelly's recording of the meetings and how it had breached the trust of the employer.
There was also a finding that the tribunal had overstepped the mark regarding its view on Mr Kelly being able to learn Mandarin. The job description contained a specific and unambiguous requirement that the incumbent be able to speak, write and listen in Mandarin. The tribunal viewed that, although Mr Kelly did not speak Mandarin, he would be able to learn it, and therefore considered the Commercial Director, China PGA European tour suitable for him, notwithstanding that he did not fit the essential criteria for the role. It was also found to be inappropriate to ignore this requirement and order re-engagement into this role.
The re-engagement order was therefore overturned and re-engagement of Mr Kelly refused.
This is a useful decision for employers when faced with a former employee seeking reinstatement or re-engagement as it gives helpful guidance as to what they have to show in order for an employment tribunal to refuse to exercise its discretion in this manner. It also serves as a reminder of the power the employment tribunals have, given that any such order for reinstatement or re-engagement also requires the employer to pay salary from the date of termination to the date of the order, in addition to employing the individual going forward.
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If you have any queries about the employment tribunal process, or if you're facing a claim from a former employee, please contact one of the employment team to discuss further.