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Legal Corner: When can an employee be reinstated or re-engaged following an unfair dismissal?

14th May 2021
Legal Corner: When can an employee be reinstated or re-engaged following an unfair dismissal?

In cases where an employee has been unfairly dismissed, they may choose to simply claim financial compensation for the loss of earnings sustained following the dismissal. However, an employee is also able to seek an order that they be reinstated to their previous role, or that they be re-engaged in a different role with the same employer. Orders of this kind are fairly rare, as there are – inevitably – a number of conditions that must be met.

An interesting example of this is the recently decided case brought by Scott Kelly against the PGA European Tour (the Tour). Mr Kelly was employed as the Group Marketing Director and had worked for the PGA for 26 years when he was dismissed in 2015. This followed the appointment of a new Chief Executive Officer, Keith Pelley.

Mr Kelly brought a claim in the employment tribunal, alleging that he had been unfairly dismissed, and discriminated against on the grounds of his age.

The Tour accepted that they had unfairly dismissed Mr Kelly, as they had not conducted a fair procedure prior to the dismissal – but they denied that the dismissal had been related to Mr Kelly’s age. After hearing evidence, the tribunal rejected the age discrimination complaint. They found that Mr Pelley had formed a negative view of Mr Kelly and his skills, based on his own observations and the views of others in the commercial team, and accepted that Mr Kelly was not suitable for the role that he held.

Mr Kelly asked to be re-instated to the role he had been dismissed from or to be re-engaged in another role. In assessing this, the tribunal must consider the practicability of such an order.

They found that Mr Kelly’ role of Group Marketing Director had ceased to exist following a restructure and that the structure of the Tour and the way that it worked had changed. Therefore, it was not practicable to order reinstatement to a role that did not actually exist. They then went on to consider whether to order re-engagement.

The only available role that was potentially suitable was a role as Commercial Director, China. The Tour argued that Mr Kelly should not be re-engaged into that role; Mr Pelley did not have confidence in Mr Kelly’s ability, nor did he feel that Mr Kelly could be trusted after he had recorded some of their previous conversations. In addition, one of the key requirements of the role was the ability to speak, read and write in Mandarin, which Mr Kelly could not do.

The tribunal rejected those arguments, finding that the doubts and concerns about Mr Kelly’s ability to perform the role were not so significant that it made it impracticable for Mr Kelly to be re-engaged. As for the language requirement, Mr Kelly had expressed a willingness to learn Mandarin; he also had a ‘modest navigation of Japanese’ and hoped that his proficiency with languages would assist him in learning Mandarin. The tribunal considered that in light of this, he would be able to learn, and therefore ordered that he be re-engaged to the Commercial Director, China role.

The Tour appealed that decision, arguing that the employment tribunal were wrong to order that Mr Kelly be re-engaged to a role for which he did not have the requisite ability, nor did he meet the core requirements. The Employment Appeal Tribunal (with whom the Court of Appeal has now agreed) considered that it was not practicable to order reinstatement in this case.

That decision did not take account of the concerns that Mr Pelley had raised about Mr Kelly’s skillset (which the tribunal had accepted when they found that this had been part of the reason for the dismissal). Nor did it factor in that the ability to communicate in Mandarin was an essential requirement, which Mr Kelly simply did not meet. Therefore, the order for re-engagement was revoked.

This case demonstrates that orders for reinstatement and re-engagement can, and are, considered in appropriate cases. Whether they are reasonable depends on the circumstances of the dismissal, and any findings made at that stage. However, the most important consideration is whether the individual is actually suitable for the available role and meets the essential criteria. If they do, it may well be practicable to order that they take on that role; if not, it would clearly not be reasonable to require an employer to employ someone who was unable to do what was required of them.

Safia Tharoo, Barrister, 40 Bedford Row, London

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