Today’s case focuses on re-engagement. Re-engagement is where an employer has dismissed an employee, a Tribunal has found the dismissal was unfair, and then has been ordered to re-engage the employee in a role other than his original one (reinstatement being where the employee is simply reinstated in his original job).
In particular, we shall be looking at in what circumstances an employer can appeal an order for re-engagement due to a breakdown of trust and confidence.
Facts of the Case
Mr. Kelly was the Group Marketing Director for PGA from 1989 until he was dismissed in 2015. His employer’s accepted that his dismissal was unfair, due to a failure to comply with proper procedural requirements.
The Employment Tribunal then ordered that Mr. Kelly be re-engaged with the company as their Commercial Director for China.
On appealing the decision to the Employment Appeals Tribunal (EAT), PGA argued that it was impracticable for Mr. Kelly to be re-engaged as there had been a breakdown in trust and confidence, and that (on a side) he did not meet the essential job criteria of being able to speak Mandarin.
The EAT came to the decision that there had indeed been a breakdown of trust and confidence (stemming from Mr. Kelly having covertly recorded several of his meetings regards his employment before his dismissal), and that the Employment Tribunal erred in finding that this trust and confidence could be re-generated by “reasonable professional behaviour”.
The question for the tribunal was not whether it considered that trust and confidence should have been undermined and could be re-kindled, but rather whether the employer reasonably and genuinely believed that trust and confidence had been undermined.
Judge Auberach stated that “the tribunal must consider whether the employer genuinely and rationally believes that trust and confidence has been broken, so that re-employment is not practicable: that is, not capable of being carried into effect with success. An employer cannot merely assert that this is the case in a self-serving way, in order to successfully resist the Order sought. The tribunal should test and evaluate against the evidence before it, whether the employer’s stated belief is both genuinely and rationally held. But it must keep in mind that the ultimate question is about whether it is practicable for this employer to re-employ this employee.”
The EAT did consider the employer’s belief about the impracticability of re-engaging Mr. Kelly to be genuinely and rationally held, and that this was what mattered (as opposed to any conviction of the tribunal about the merit of that belief).
On a side, the EAT said that it was unreasonable to expect Mr. Kelly to be re-engaged in a post where he did not meet one of the minimum essential requirements (ability to speak Mandarin).
Re-engagement is a rare remedy, but this case makes clear that an employer may challenge such a decision if it genuinely and rationally believes that there has been a breakdown in trust and confidence, and that this would make re-engagement impracticable. It also demonstrates to us that any spurious attempt to argue that there had been such a breakdown in order to prevent the order, would not succeed, as the tribunal ought to investigate the genuine feelings of the employer regarding the trust and confidence they place in the employee, and shall therefore be likely to see through any such ruse.