Tue 04 May 2021

Employer's view on capability pivotal to assessment of practicability of re-engagement

Court of Appeal confirms employer's rational loss of trust and confidence in employee's capability can render Employment Tribunal order of re-engagement not practicable

When an employee is successful in a claim for unfair dismissal the available remedies include an order for re-instatement or re-engagement.  An order for re-engagement requires the employer to return the employee to their employment in a comparable role to that from which the employee had been dismissed.  Such an order may be made in circumstances where the tribunal has found that an order for re-instatement (where the employee is returned to the original role) was not appropriate.  In considering whether an order for re-engagement should be made, a tribunal needs to take account of any wish expressed by the employee as to the nature of the employment, whether it is practicable for the employer to comply with the order and, where the employee caused or contributed to his dismissal, whether it is just to order the re-engagement and, if so, on what terms. 

It is well established that loss of trust and confidence in an employee may render re-instatement or re-engagement not practicable in cases of dismissal for misconduct.  In Kelly v PGA European Tour the tribunal considered this in the context of a capability dismissal.  The respondent had conceded that the dismissal was unfair as a fair procedure had not been followed.  The employment tribunal ordered that the claimant be re-engaged to the vacant post of Commercial Director, China.  The claimant requested that the tribunal reconsider that decision, contending that the respondent should have disclosed the existence of other comparable roles that had already been filled prior to the remedies hearing. However, that request was refused by the employment tribunal.  The respondent appealed against the order for re-engagement and the claimant appealed against the refusal of his request for reconsideration.

The Employment Appeal Tribunal (EAT) held that the re-engagement was not practicable if the employer genuinely and rationally believed that the employee would not be capable of fulfilling the role he had to perform or the employee's conduct had led to a breakdown in trust and confidence, as was the case here.  The EAT also concluded that the employment tribunal had erred in ordering re-engagement to the role of Commercial Director, China as the tribunal had also found, as a fact, that an essential requirement of the post was that the holder be able to speak, write and read Mandarin.  The claimant could not do that. The EAT set aside the order for re-engagement.  The EAT also held that the respondent was only required to disclose vacancies existing at the time of the remedies hearing and it was not required to disclose other comparable or suitable posts that had already been filled between the dismissal and the remedies hearing.

On appeal the Court of Appeal confirmed that, where an employer asserts that an employee's conduct has led to a breakdown of trust and confidence, the tribunal must consider whether the employer genuinely and rationally believes that trust and confidence has been broken.  If it is found that the employer does so genuinely believe, re-engagement will not be practicable.  Similarly, if an employer genuinely and rationally believes that an employee would not be able to perform a role to the requisite standards, the Court found that would be relevant to, and probably determinative of, the practicability of the re-engagement.  Given the claimant's inability to speak Mandarin, an essential requirement for the job, it was not practicable for the respondent to comply with the order for re-engagement.

The Court also confirmed that it is not necessary for a tribunal to look at vacancies that had arisen after the dismissal but had already been filled by the time re-engagement was considered at a remedies hearing. 

This case confirms that an employer's judgement, so long as it is genuinely and rationally held, must be taken into account when considering the practicability of re-engaging an employee in an alternative role in the case of a capability dismissal, and not just misconduct dismissals.  However, employers will need to be able to support their view of the employee's capability, it will not be enough to merely assert their belief.  Ideally, this would include written records noting the concerns and the reasons for them.  

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