The claimant was the Group Marketing Director for the respondent until the respondent decided that he was not capable of performing the role.  A claim for age discrimination was dismissed yet the respondent conceded that the dismissal was unfair.  The claimant sought re-instatement or re-engagement as commercial director in China.  The EAT decision which upheld the finding of the Employment Tribunal that the Claimant was unfairly dismissed for capability (but not age discrimination) was reported on here and the remedy hearing was reported here.  

Re-instatement was not possible as his previous role had been subsumed by another.  However, the Tribunal stated that he could be re-engaged even though he could not speak Mandarin which was essential.  This was on the basis that the claimant demonstrated a willingness to learn, and he had proficiency in languages.  Furthermore, the Tribunal stated that issues of lack of trust and confidence in the claimant’s capability were not significant enough to stop re-engagement.  The EAT allowed an appeal from the respondent stating that it was not practicable on the basis of lack of trust and confidence as well as the fact that the Tribunal had substituted its own view rather than the employer’s view.

The claimant appealed to the Court of Appeal.  The Court of Appeal gave a useful analysis of the interpretation to be given to Section 116 of the Employment Rights Act 1996 (Art. 149 of the Employment Rights (NI) Order 1996) regarding re-engagement.  They held that the Tribunal would ordinarily consider the position at the date of the remedies hearing but that they did not have to look at comparable employment carried out by other employees or other vacancies within the respondent.  The big issue was the issue of practicability. 

The Court of Appeal affirmed the approach in United Lincolnshire Hospitals v Farren (2017) stating that if an employer had a genuine and rational belief that the employee had conducted themselves such that it led to a breakdown of trust and confidence then that should show that re-engagement is not practicable.    Accordingly, the conduct could be such that the dismissal is still unfair yet may still reach a threshold of leading a lack of trust and confidence.  Therefore, the fact that the claimant had covertly recorded meetings and that the respondent had genuine doubts to the capability and integrity of the claimant were sufficient to demonstrate that it would be impracticable to allow re-engagement.  Helpfully, the Court stated that the relationship had to work in ‘human terms’ which should be considered in ordering re-instatement or re-engagement.  As a result, the appeal was dismissed.

Practical Lessons

This case demonstrates the legal framework governing re-engagement.  The Court of Appeal have provided a helpful explanation for when re-engagement may not be allowed.  Their approach is employer friendly on the basis that it should be whether the employer holds a genuine and rational belief that it would not be practicable on the basis of trust and confidence.  Yet the issue of trust and confidence should not be misconstrued in light of its uses elsewhere (such as constructive dismissal claims) but instead should be examined in the human sense.
https://www.bailii.org/ew/cases/EWCA/Civ/2021/559.html