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Re-employment: is that going to work?

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Kelly v PGA European Tour 

In the vast majority of cases an employee who succeeds in a claim for unfair dismissal will be awarded compensation up to certain limits. However, in some cases the Employment Tribunal may order that the employee be reinstated or re-engaged by the employer. The issue in the case of Kelly v PGA European Tour was whether it was appropriate to make such an order where it had been found that the dismissal was due to concerns regarding the employee’s capability to carry out their role. 

Mr Kelly was dismissed after not agreeing to retire

Mr Kelly had been Group Marketing Director of the European Tour for a number of years when Mr Pelley was appointed as the new Chief Executive. Following a review of marketing Mr Pelley quickly formed the opinion that Mr Kelly didn’t have the analytical skills or marketing knowledge necessary to achieve the organisation’s aims for commercial growth. In subsequent meetings, which Mr Kelly secretly recorded, he suggested that he should retire but when terms were not agreed he dismissed Mr Kelly. 

Decision 

The Court of Appeal has held that whilst an Employment Tribunal was entitled to find that Mr Kelly’s dismissal was unfair it should not have made an order for re-engagement. The employer held genuine concerns relating to Mr Kelly’s ability to carry out the job and his secret recording of the conversations with Mr Pelley had impacted on trust and confidence. Given these findings and genuinely held concerns re-employment was not capable of being carried into effect with success. 

Key takeaway points

Orders for reinstatement or re-engagement should only be made where it would be reasonably practicable for the employer to comply. This might explain why they are so rarely made in practice. Where the actions of the dismissed employee had damaged trust and confidence or where there were genuine and rational concerns about the employee’s ability to carry out their role an Employment Tribunal must take into account whether they could be successfully re-employed.

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