Re-engagement not appropriate where the employer has lost trust in the employee

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In the vast majority of cases where an employee is found to have been unfairly dismissed the Employment Tribunal will make an award of compensation. However, it also has the power to make an order that the employee is reinstated or re-engaged by the employer. In the case of PGA European Tour v Mr Scott Kelly the question was whether such an order was appropriate in circumstances where the employer had alleged there had been a breakdown in trust and confidence.  


Mr Kelly had long service and was Group Marketing Director when dismissed due to concerns about his willingness to “buy- in” to new ideas. Mr Kelly had covertly recorded the meeting at which the dismissal took place. The employer conceded it was unfair as no process was followed. The Tribunal ordered that Mr Kelly should be re-engaged and that any trust and confidence issues arising from the covert recording of meetings were not so significant as to make re-engagement impracticable. 


The EAT ruled that what was relevant was whether in the employer’s view there had been a breakdown of trust and confidence that meant re-engagement was impractical. The fact that Mr Kelly’s covert recording only came to light following his dismissal did not prevent it from being a factor to take into account. There does not have to be conduct contributing to the dismissal to affect the question of re-engagement as all of the evidence available at the time of the remedy hearing is to be considered. 

Key point

This decision is good news for employers who may otherwise feel that they have no alternative but to resist the Tribunal Order and as a result have to pay additional compensation of between 26 and 52 weeks' capped pay. For claimants, there are still tactical advantages to requesting reinstatement as it may assist with negotiating settlement given that the statutory cap on the compensatory award will not apply to the pay and benefits lost between the dismissal and the reinstatement.

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