Reinstatement and reengagement are potential remedies in an unfair dismissal claim. Reinstatement means the employee is put back into the job from which they were dismissed. Re-engagement means that an employee is taken back on by the business in comparable employment to the job from which they were dismissed, or other suitable employment. An employment tribunal must consider reinstatement first, and then if it decides not to reinstate the employee, go on to consider re-engagement. At each stage, the tribunal must consider whether taking the employee back on, in their previous or another role, is practicable. Practicable means re-employment is more than just possible – it means that re-employment is capable of being carried into effect with success. The Court of Appeal has looked recently at the practicability test in Kelly v PGA European Tour.
The employee had worked for the employer for 26 years, latterly as Group Marketing Director. In 2015, the employer took on a new Chief Executive Officer. Within the first couple of months, the new CEO had concerns about the employee’s performance and his ability to ‘buy in’ to his new vision for the business. The CEO tried to negotiate the employee’s exit. During this process, the employee secretly recorded meetings. When negotiations failed, the employee was dismissed without following a fair procedure. He brought claims for unfair dismissal. The employer conceded his dismissal had been unfair due to the lack of procedure. The employee sought reinstatement or re-engagement to the business.
The employment tribunal decided the employee should be reengaged into the role of Commercial Director, China. Speaking Mandarin was an essential criterion for the role. The employer objected to this, because the employee couldn’t speak Mandarin and they felt trust and confidence had broken down. The tribunal noted that the employee was willing to learn and adept at languages. The trust and confidence issues weren’t so serious and concerns about his performance and integrity (about the recordings) could be overcome. Reengagement to this role was practicable. The EAT disagreed and allowed the company’s appeal so the employee appealed to the Court of Appeal. The Court of Appeal agreed with the EAT. An employer’s genuine belief in an employee’s lack of capability in relation to a role, or a genuine belief that trust and confidence has broken down, can mean reengagement is not practicable. The tribunal here had substituted its own view rather than considering whether the employer’s doubts about integrity and capability were genuine and rational. Reengagement to a job where the employee didn’t meet the essential criteria was perverse.
Employers will be heartened by confirmation at this level that reengagement to a role where an employee lacks essential skills, or where trust and confidence has been destroyed, is not reasonable or practicable. The Court also noted that the rules didn’t require an employer to consider vacancies that had been filled by the time the remedies hearing took place, just vacancies which existed at the time of the hearing. Reemployment remedies are tricky as they necessarily follow a dismissal which is unfair. That will always have an impact on relationships. This case shows that the reengagement remedy is limited, and in some cases an employer can avoid it.
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