When Is Employee Re-Engagement Considered Impracticable?
In the case of Kelly v GA European Tour (2021), the Court of Appeal has held that if an employer had a genuine and rational belief that a dismissed employee would be incapable of fulfilling the role, this could make re-engagement impracticable.
Kelly v PGA European Tour (2021)
Mr Kelly worked as a Group Marketing Director for PGA European Tour (PGA). Mr Kelly was dismissed due to performance concerns along with his reluctance to accept ideas put forward by the Chief Executive of PGA. Mr Kelly brought an unfair dismissal claim against PGA and the tribunal decided that the remedy for this claim would be re-engagement to the role of PGA's Commercial Director in China as his previous role had ceased to exist. Despite PGA's concerns about Mr Kelly's capability and integrity, along with Mr Kelly not meeting the essential requirements of the new role such as the requirement to speak Mandarin, re-engagement was still considered to be a suitable remedy.
PGA appealed to the Employment Appeal Tribunal (EAT). The EAT allowed the appeal however Mr Kelly then appealed to the Court of Appeal.
The Court of Appeal made the following findings:
- PGA's genuine and rational lack of belief in Mr Kelly's capability to perform the required role resulted in it not being practicable for Mr Kelly to be re-engaged by PGA.
- Tribunals should not order re-engagement or re-instatement in situations where an employer has genuine concerns about an employee's integrity.
- When assessing whether re-engagement is a suitable remedy, employment tribunals do not need to consider any other vacancies filled prior to the remedy hearing.
What Does This Mean for Employers?
Employers should be aware that in certain unfair dismissal cases, tribunals may consider re-engagement of the individual to be the most suitable remedy. However, such cases are very rare and nothing in the Court of Appeal's decision is likely to make re-engagement or re-instatement orders more common.