Auteur
kathryn clapp

Kathryn Clapp

Senior professional support lawyer

Read More
Auteur
kathryn clapp

Kathryn Clapp

Senior professional support lawyer

Read More

16 septembre 2020

Law at Work - September 2020 – 4 de 5 Publications

No requirement for employer to re-engage employee following unfair dismissal where lack of trust and confidence in employee's capability

  • QUICK READ

Kelly v PGA European Tour EAT/0285/18

Why care?

The EAT in this case considered that an employer’s lack of trust and confidence in an employee’s capability (and not just conduct) may be a relevant factor for a tribunal to take into account when assessing whether it is practicable for an employer to re-employ an employee following an unfair dismissal. It also held that the employment tribunal had erred in reaching its own view on practicability.

The case

Mr Kelly was employed by PGA in 1989 as Marketing Director of the European Tour and by 2015 he was Group Marketing Director. In 2015, the PGA's new Chief Executive, P, decided within two months of his appointment to dismiss Mr Kelly over concerns about his performance and willingness to "buy in" to his ideas. They could not agree on exit terms and Mr Kelly was dismissed. He brought a claim of unfair dismissal. PGA conceded that the dismissal was unfair as there had not been a fair procedure so the employment tribunal (ET) considered the appropriate remedy.

Mr Kelly wanted the ET to order either that he get his old job back (reinstatement) or, failing that, to be re-engaged in similar employment (re-engagement). The ET declined to order reinstatement but did decide that it was appropriate to order re-engagement. It then had to decide whether re-engagement was practicable and decided that it was, despite the PGA’s argument that this was not the case because P lacked trust and confidence in Mr Kelly.

PGA's concerns were about Mr Kelly's capability and the discovery that he had covertly recorded meetings with P, but the ET noted that Mr Kelly had 26 years’ successful service and had recently been offered a role as a consultant on a tournament in Morocco.

The ET ordered that Mr Kelly be re-engaged in the role of Commercial Director, China, one that he had identified to be of interest. Although PGA had stated that a Mandarin speaker was required for this role and Mr Kelly did not have this skill, they considered that his willingness to learn Mandarin and his proficiency in foreign languages meant that it was practicable.

PGA appealed to the EAT against the re-engagement order. The question for the tribunal was whether it was practicable to order PGA to re-engage Mr Kelly. It is the employer's view of trust and confidence, tested by the tribunal as to its genuineness and rational foundation, that matters.

The EAT rejected Mr Kelly's argument that trust and confidence is only relevant to practicability where dismissal is based on an employee's conduct, not capability. There is no reason in principle why what is said to be a belief about the employee’s capability or performance cannot be relied upon as the source of concern.

The EAT also held that the tribunal had erred in substituting its own view on whether the ability to speak Mandarin was an essential requirement of the role. Requiring PGA to engage someone in a role for which they did not meet one of the essential (rather than preferable) requirements and accepted by the employment tribunal meant it had substituted its own decision for the employer's. The ET had therefore erred in reaching its own view. The EAT considered it clear that re-engagement should have been refused and remitted the case for further consideration by the employment tribunal.

What to take away

It is well established that a genuine loss of trust and confidence may lead to the conclusion that re-employment would not be practicable. Remedies of reinstatement or re-engagement are rarely requested but where they are, this is often the reason why they are not given.

The EAT in this case held that a breakdown of trust and confidence is relevant not just in misconduct but also capability cases. It also confirmed that it is the reasonableness of the employer's requirements, in this case that speaking Mandarin was essential to the role to which Mr Kelly wanted to be re-engaged, which the employment tribunal should assess, rather than substituting these considerations with its own decision.

Dans cette série

Droit Social, pensions et mobilité

Contemplating redundancies as furlough scheme ends

QUICK READ

par Helen Farr, Shireen Shaikh

Droit Social, pensions et mobilité

Does an employer’s duty of care extend to commuting?

QUICK READ

par Helen Farr

Droit Social, pensions et mobilité

Employment hot topics

September 2020

QUICK READ

par Kathryn Clapp, Shireen Shaikh

Call To Action Arrow Image

Latest insights in your inbox

Subscribe to newsletters on topics relevant to you.

Subscribe
Subscribe

Related Insights

colleagues talking at computer
Droit Social, pensions et mobilité

Bringing employees back to work: the Chancellor announces furlough scheme flexibility from 1 July

16 juin 2020
QUICK READ

par Paul Callaghan et Kathryn Clapp

Cliquer ici pour en savoir plus
Chairs around table
Droit Social, pensions et mobilité

Law at Work - Hot topics May 2020

20 mai 2020
QUICK READ

par Kathryn Clapp et Shireen Shaikh

Cliquer ici pour en savoir plus
Droit social

Putting employees on "furlough" to protect jobs

23 mars 2020
QUICK READ

par plusieurs auteurs

Cliquer ici pour en savoir plus