Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

When an employee is dismissed unfairly, the tribunal has a number of remedial options. One of these, as outlined in Sections 113 and 114 of the Employment Rights Act 1996 (‘the Act’) is re-instatement; that is, to re-employ the dismissed claimant as if they had never been dismissed in the first place.

Section 115 of the Act deals with re-engagement, which is often a more complex issue. An order made under that provision requires the employer to re-engage the dismissed claimant in a manner which is “comparable” and must be “reasonably practicable”. It was this which formed the basis of an appeal heard in the Court of Appeal recently.

The factual background in Kelly v PGA European Tour

The Claimant, Mr Kelly, had worked for the Respondent as the Marketing Director of the PGA European Tour. A new CEO (Mr Pelley) was appointed, who told the Claimant that he wanted him to retire at the end of the next year. The Respondent subsequently dismissed the Claimant, and the Claimant made a claim in the Employment Tribunal for unfair dismissal and discrimination on grounds of his age. He sought re-instatement or re-engagement.

The Respondent admitted prior to the hearing date that it had dismissed the Claimant unfairly, and so the only issue which remained to be decided by the tribunal was whether this was a case of age discrimination. The tribunal concluded that it was not, because they accepted that Mr Pelley’s reasons for dismissal was his concern that the Claimant was not capable of fulfilling the role that Mr Pelley wished him to perform.

The remedies hearing

The Claimant sought re-instatement, but the role had been restructured and had ceased to exist, so the tribunal instead considered re-engagement. The Tribunal concluded that the only role in respect of which there was a realistic possibility of successful re-engagement was the role of Commercial Director, based in China. One of the requirements in the job description for this role was the ability to speak, read, and write Mandarin. The Claimant could not do this. Despite this, the tribunal made an order for re-engagement, on the understanding that the Claimant would learn Mandarin and would seek provision for a translator while he was learning the language.

The appeal

The EAT overturned the decision of the tribunal, as it said the only possible conclusion was that it was not open to the ET on the facts as found by it to order re-engagement, those facts being the language barrier. The EAT also remitted the question of whether there should be a ‘Polkey reduction’ (a reduction of compensation if it is found that the Claimant would have been dismissed fairly anyway) to the ET. The Claimant appealed to the Court of Appeal.

Our lawyers’ comments on the case

The Court of Appeal upheld the reasoning and decision of the EAT. The court rules that it was not practicable for the respondent to comply with an order for re-engagement as the claimant did not meet an essential requirement for performing the role as he did not speak, write, or read Mandarin. On those facts, it was inevitable, as the EAT held, that the employment tribunal could not properly order that the claimant be re-engaged in the role of Commercial Director, China.

They also dismissed the Claimant’s appeal in relation to remitting the Polkey reduction decision, as there was evidence before it which may have enabled it to assess the chances that the claimant would have been fairly dismissed at some stage, which the tribunal had failed to consider.

Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2021/559.html

Tagged with →  

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

    Your first name (required)

    Your last name (required)

    Your email (required)

    Your telephone number (required)

    Brief details of your enquiry

    Testimonials

    4.80 Average

    312 Reviews

    Anonymous

    I have been very pleased with the support I got from Redmans Solicitors on my case with my employer. Caroline has always helped me to put things in perspective and showed me different scenarios ultimately to help me taking the right decision. She was very professional and always available when I needed, and at the same time also emphatic which I found also really important to establish a strong relationship. Will definitely recommend!

    Posted 1 day ago

    Anonymous

    Prompt and efficient response to my enquiries. Excellent negotiating skills with my employer which considerably improved the terms of my settlement agreement.

    Posted 2 days ago

    Anonymous

    Very quick and professional service , Rana was very helpful

    Posted 2 days ago

    James G

    Very professional, knowledgeable and kept me informed at every stage of my case. I would highly recommend Redmans.

    Posted 4 days ago

    Pravina P

    Chris was really good and help solve my issues with current company. I would recommend him to anyone.

    Posted 1 week ago

    Paul L

    Sacha was extremely helpful in my matter. I would not hesitate you use Sacha or Redmonds again. Everyone was very helpful.

    Posted 2 weeks ago

    Monique N

    I had Mel Chin helping me with a settlement and she was very professional and reliable throughout my case. Mel provided me with a good understanding of what was happening and gave suggestions on routes I could take. My case was resolved and closed promptly although the opposing side were very difficult to deal with. A very big thank you to Mel and Chris.

    Posted 2 weeks ago

    Jackie C

    My first ever experience needing the services of a solicitor; cannot speak highly enough of Mel and Chris’s personable, reassuring and straight to the point advice in dealing with my settlement agreement. They put me at ease during an extremely stressful time. I am equally as happy with the outcome, as l am their professional services.

    Posted 2 weeks ago

    ""

    Really happy with the service. All very efficient. Mel rattled through things very fast, however was great whenever I needed to stop and ask a question! Would definitely return to Redmans if I ever needed Legal advice.

    Posted 3 weeks ago

    Peter F

    Very helpful and clear advice, would highly recommend.

    Posted 3 weeks ago

    William A

    Second time I have had to use Redmans. They did not disappoint. They are fast , efficient and friendly. I have already recommended them to friends and colleagues. I hope I dont have to use them again but if I have to , they are the solicitors for me.

    Posted 3 weeks ago

    Fleeta C

    Great service with tantastic communications. The solicitor responsible is extremely knowledgeable and was responsible for bringing a timely and desired solution.

    Posted 3 weeks ago

    Veronica M

    Extremely helpful, starting from a request for advice at very short notice, to dedicating time for me to understand and review all documents thoroughly.

    Posted 3 weeks ago

    Sophie R

    Very efficient and professional service. Chris was very empathetic, knowledgeable and personable. Highly recommended.

    Posted 4 weeks ago

    Melanie M

    Very happy with the detailed advice provided from Redmans. They also helped me to secure a higher settlement than originally offered by my employer and were extremely diligent. I first spoke with Chris at relatively short notice and then Sacha dealt with my case. Would definitely recommend and use again in the future if needed.

    Posted 1 month ago

    Anonymous

    Redmans helped me with a work related issue, which was resolved quickly and professionally. I would definitely recommend this company.

    Posted 1 month ago

    James F

    Great people, really friendly and professional helped with everything that I needed.

    Posted 1 month ago

    Anusha S

    My case was handled by Sacha who was very thorough and helped me to achieve a good outcome with my employer. Sacha was very personal, professional and helped me during quite a stressful time, so I am hugely grateful to her and to Redmans. This was my first time engaging with a law firm so I wasn't sure what to expect but I can definitely say that it was a good experience overall and I ended up better off due to having the help of an experienced and proactive solicitor on my side.

    Posted 1 month ago

    Diane P

    So grateful that I contacted Redmans to deal with my Redundancy Agreement. Everything from the initial call to the completion of the matter was professional, efficient and effective. I was listened to, had everything explained simply and kept informed of every step. I received super advice and the costs were very competitive. I would highly recommend them to anyone seeking similar help. First class service - thank you

    Posted 1 month ago

    Chris L

    It was a very efficient and effective service - Would recommend.

    Posted 1 month ago

    Anonymous

    Exceeded my expectations. Very professional and proactive. I highly recommend them.

    Posted 1 month ago