Employer's loss of trust and confidence in ex-employee must be taken into account where re-engagement is ordered


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The Employment Appeal Tribunal (EAT) has held in Kelly v PGA European Tour that an employer's lack of trust and confidence in an employee's capability may be a relevant factor for an Employment Tribunal to take into account when assessing whether it is practicable for the employer to re-employ the employee following an unfair dismissal.

The claimant was employed by PGA as a Marketing Director in 1989, over time becoming a Group Marketing Director.  In 2015 a new Chief Executive was appointed and within two months he decided (when exit terms could not be agreed) to dismiss the claimant due to concerns about the claimant's performance.  When the claimant brought a claim for unfair dismissal, PGA conceded that the dismissal had been unfair.  He sought reinstatement, which the Employment Tribunal refused, or re-engagement.  The Tribunal concluded that re-engagement was practicable and ordered the claimant to be re-engaged in the role of Commercial Director, China.  Although the ability to speak Mandarin was a requirement of the role, and the claimant did not speak it, the Tribunal found that his stated willingness to learn and his proficiency with foreign languages meant that it was practicable.  PGA appealed arguing that the Tribunal had impermissibly considered for itself whether trust and confidence in the claimant had been damaged (he had covertly recorded some meetings) instead of asking whether PGA had a rational basis for believing that it had.

On appeal the EAT held that it is the employer's view of trust and confidence (provided that it is tested by the Tribunal as to whether it is genuine and founded on a rational basis) that matters and not the Tribunal's.  It also found that where the employer has genuinely distinguished between essential or preferential elements of a job specification and the employee does not meet an essential requirement, it will generally be an error to require the employer to re-engage the employee in that post.

Take note: The decision in Kelly is good news for employers.  It will not be possible for a tribunal to conclude that re-engagement is practicable if the employer's trust and confidence in the ex-employee has been damaged.  If re-engagement is possible then the employee will have to meet all the essential requirements for the new role.

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