The claimant commenced employment with the respondent in 1989 as Marketing Director (this had become Group Marketing Director in 2015) but following the appointment of a new Chief Executive he was dismissed due to concerns that he failed to ‘buy into’ the new Chief Executive’s ideas.  The claimant brought an unfair dismissal claim, and this was successful due to lack of fair procedure.  The substantive element was covered in a previous case review accessible here.

The index hearing centred upon the remedy that was to be given to the claimant.   He sought re-instatement under Section 114 or failing that re-engagement under Section 115 of the Employment Rights Act 1996 (Article 148 and 149 respectively of the Employment Rights (NI) Order 1996).    The issue was which, if any, should be given to the claimant.   At first instance, the Tribunal declined to order reinstatement instead concluding that re-engagement would be more appropriate.  The respondent’s argument relating to a lack of trust and confidence was rejected by the Tribunal as they were not ‘significant’ enough.   The Tribunal ordered that the claimant was to be re-engaged in the position of Commercial Director in China.  The PGA sought a Mandarin speaker for the role the Tribunal held that the Claimant’s willingness to learn Mandarin as well as the Claimant’s proficiency in foreign languages meant that it was practicable for the Claimant to re-engaged in the role.

The respondent appealed against this decision on the basis that the trust and confidence point had not been properly considered as well as the need for Mandarin for the new role.  The EAT examined the wording of the legislation focusing on the fact that it was whether it was practicable for this employer to re-engage the employee.  The use of the word ‘this’ meant that it was subjective, and it was the employer’s view of whether there was still a relationship of trust and confidence. To that end, it would be for the Tribunal to determine whether such a belief was genuine and founded on a rational basis.  Additionally, the idea of trust and confidence in relation to re-instatement/engagement was not solely focused on conduct cases but applied across the board.   This approach means that there could be an unreasonable decision to dismiss, yet the same reason could be seen as rational.  This creates different thresholds depending on the question being asked.  In terms of this case, it was held that the appeal should be allowed as the Tribunal had failed to consider the trust and confidence issues from the perspective of the respondent.  The appeal was also allowed on the basis that the Tribunal could not substitute its own view as to whether Mandarin was an essential requirement for the new role.  Accordingly, the re-engagement was refused.

Practical Lessons

This case demonstrates the distinction to be drawn between the use of reasonableness in determining whether a dismissal is fair and ‘genuine and rational’ when it comes to the question of re-engagement.   The genuine and rational threshold placed upon employers when arguing that there cannot be re-engagement provides much more flexibility as it has to be taken from their subjective viewpoint rather than the Tribunal being able to determine whether their belief is merely reasonable.   For that reason, the employer will be given greater heed in seeking to argue against re-instatement/re-engagement.
https://www.gov.uk/employment-appeal-tribunal-decisions/mr-scott-kelly-v-pga-european-tour-ukeat-0338-19-da