Re-instatement or re-engagement after an unfair dismissal: when is it practicable? Kelly v PGA European Tour [2021] EWCA Civ 559

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: