Kelly v PGA European Tour

For re-engagement, practicable means capable of being carried into effect with success. The tribunal must determine that question prospectively at the remedy hearing, although its determination does not estop a later determination under section 117.

Where loss of trust and confidence is relied on, the tribunal must test whether this employer genuinely and rationally holds the asserted belief. It must not substitute its own view. Capability concerns may found such a belief; rationality is not the ordinary unfair-dismissal reasonableness test.

A tribunal will usually err by ordering re-engagement to a post for which the employee does not meet a genuinely essential requirement. It must give due weight to the employer's commercial judgment. Vacancies filled before the remedy hearing are unavailable, save for the statutory protection concerning replacement of the complainant.

The Claimant had worked for the Respondent since 1989 and was dismissed in October 2015. The Respondent conceded unfair dismissal, but the Employment Tribunal dismissed his age-discrimination claim in its 2016 decision.

At a later remedy hearing, the Tribunal unanimously refused reinstatement but, by a majority, ordered re-engagement as Commercial Director, China PGA European Tour. It also expressed a provisional view that no Polkey reduction would be made. The Respondent appealed that order.

The Claimant separately appealed the refusal of his application to reconsider the remedy decision. He contended that the Respondent should have disclosed suitable posts which had arisen after dismissal but had been filled before the remedy hearing.

The central issues were the proper approach to practicability, trust and confidence, an essential Mandarin-language requirement, the scope of section 116(5), and the Polkey assessment.

1. Respondent's appeal allowed; Claimant's appeal dismissed. The re-engagement order was set aside and substituted with an order refusing re-engagement. The compensatory award, including Polkey, was remitted to the same Tribunal if available.

2. Under Employment Rights Act 1996, practicability means capable of being carried into effect with success. At the section 116 stage, the Tribunal must make a real, prospective determination whether compliance will be practicable by the specified date. The assessment is provisional only in that it creates no estoppel at a later section 117 hearing.

3. Applying United Lincolnshire Hospitals NHS Foundation Trust v Farren, the Tribunal had to decide whether the Respondent genuinely and rationally believed that trust and confidence had broken down so that re-employment would not work. It was wrong to state the contrary test and then express the majority's own view of the Claimant's capability and covert recordings. Findings in the 2016 decision that the chief executive had formed the relevant capability views were binding findings of fact. Properly applied, those facts admitted only the conclusion that the chief executive genuinely and rationally lacked confidence in the Claimant's capability.

4. Trust and confidence is not confined to conduct cases. A genuine and rational belief about capability or performance may also make re-employment impracticable. Rationality does not mean the ordinary reasonableness test under section 98(4).

5. Mandarin fluency was a genuine, unambiguous essential requirement of the China role, which the Claimant did not meet. The majority impermissibly substituted its view that interpreters or later language acquisition could suffice for the Respondent's commercial judgment. Ground 5 therefore succeeded, although the order was not, strictly, one requiring creation of a wholly new job.

6. Section 116(5) protects the complainant where the employer permanently replaces that complainant. It does not require an employer to justify filling other suitable vacancies arising after dismissal. The reconsideration application therefore disclosed no legal basis for reopening the remedy decision.

7. The Tribunal erred in declining to undertake the Polkey exercise merely because no fair capability process occurred. It had to consider the available evidence and earlier findings when assessing whether, and with what probability, a fair dismissal would have occurred.

• Employment Appeal Tribunal: the Respondent's appeal against the re-engagement order was allowed. The Claimant's appeal against refusal of reconsideration was dismissed.
• Employment Tribunal: in the remedy decision of 18 June 2018, reinstatement was refused and, by a majority, re-engagement in the China role was ordered.
• Employment Appeal Tribunal: an earlier appeal against the Employment Tribunal's 2016 dismissal of the age-discrimination complaint was dismissed by Choudhury J in February 2018.