When making an order for re-engagement, tribunals have to consider whether it is “practicable” for the employer to comply. In Kelly v PGA European Tour, the Employment Appeal Tribunal (EAT) held that it was not practicable for a tribunal to order an employer to re-engage a former employee in whom they genuinely did not have any trust and confidence.
Mr Kelly had worked for the PGA since 1989, most recently as its group marketing director. Following a strategic review, a new CEO, Mr Keith Pelley, was appointed in August 2015. Within two months he had decided to dismiss Mr Kelly on the basis of his poor performance.
Along with the HR director, Mr Pelley met with Mr Kelly on 8 and 15 October to try to agree the terms for his departure “off the record”. Unbeknown to the other two managers, Mr Kelly covertly recorded these meetings. After a further fruitless meeting with the HR director, Mr Pelley decided to terminate Mr Kelly’s employment and at a meeting on 27 October, he was handed a letter dismissing him with effect on 30 October 2015.
Mr Kelly lodged tribunal claims for unfair dismissal, among other things. The PGA admitted in June 2016 that his dismissal had been unfair as it had not followed a fair procedure.
In January 2018, the tribunal held a remedies hearing with regard to the PGA’s admission of unfair dismissal at which it ordered the organisation to re-engage Mr Kelly in the role of commercial director, China PGA European Tour, within 56 days.
Although one of the essential requirements of the post was an ability to speak, write and listen in Mandarin which Mr Kelly could not demonstrate, the tribunal concluded that his willingness to learn and his proficiency in languages meant that it was practicable for him to be re-engaged in this role.
The PGA appealed that decision on the basis that the tribunal had reached its own conclusions as to trust and confidence rather than trying to find out whether the PGA’s view that trust and confidence had been damaged was genuine and based on a rational view of the situation.
Upholding the appeal, the EAT held that it was well established in law that a genuine loss of trust and confidence may lead to the conclusion that re-employment would not be practicable.
In order to decide whether that was the case here, the question for the tribunal to ask itself was not whether it believed the employee could be trusted, but whether the employer held a genuine and rational belief that the employee could no longer be trusted.
In this case, however, the tribunal had substituted its own view with regard to Mr Kelly’s capability (his performance) and his conduct (the covert recordings). Mr Pelley had given clear evidence at the tribunal that he could not “get past” this conduct. Although he had not known about it at the time of dismissal, it contributed to his view that trust and confidence had broken down.
The tribunal had also substituted its own view about whether the requirement to speak Mandarin was essential for the vacancy that existed. There plainly was a job for which there was a vacancy (the China job), and although the tribunal ordered Mr Kelly to be re-engaged to that job, he could not do it as he did not meet an essential requirement. In effect, the tribunal had required the PGA to create a new job for a non-Mandarin speaker, which it was not required to do.
The EAT therefore upheld the PGA’s appeal against the re-engagement order.