Mr Kelly was employed by PGA as a Marketing Director from 1989 until he was dismissed in October 2015 on the basis that he was not capable of fulfilling the role PGA wished him to perform going forwards. Mr Kelly claimed unfair dismissal and direct age discrimination, as well as claiming wrongful dismissal. The tribunal ruled that Mr Kelly was not dismissed for reasons relating to his age. However, PGA admitted that the dismissal was unfair because fair procedure was not followed.
The tribunal did not order re-instatement of Mr Kelly to his previous role but instead ordered that Mr Kelly be re-engaged in an alternative role of Commercial Director in China. The ability to speak Mandarin was an essential requirement for this role. The tribunal concluded that neither the language requirement nor any trust and confidence issues arising from PGA's doubts about Mr Kelly's capability were significant enough to make such re-engagement impracticable.
PGA appealed, arguing that the tribunal should not have considered for itself whether trust and confidence had been damaged. The EAT considered the tribunal's role should have been limited to testing that PGA's view was genuine and rational as opposed to imposing its own view on whether the situation should or should not have breached trust and confidence. The EAT found that PGA had genuinely lost trust and confidence in the Mr Kelly's capability and held a rational basis for that view.
The tribunal accepted that being bilingual was an essential part of the role in China, however, it did not take proper account of whether PGA could comply with the order for re-engagement. Whilst Mr Kelly indicated that he expected to make good progress in acquiring Mandarin within one year, the EAT found that Mr Kelly did not meet the genuine requirement of the role and that PGA had to create a role for a non-Mandarin speaker. The EAT considered the decision to impose re-engagement had fallen on the wrong side of the line between what is practicable and possible.
This case acts as a reminder of the importance of following proper employment procedures, particularly in relation to any issue that may result in a dismissal.
This case also confirms that a tribunal should take an employer's commercial judgement into account when considering the practicality of an alternative role and that it is the employer's rational view of trust and confidence that matters when a tribunal is testing the foundation of re-engagement as a remedy for unfair dismissal.