It was not practicable for a company to rehire a marketing director as a commercial director in China when the employee did not understand Mandarin, the Court of Appeal has held.
The court upheld the Employment Appeal Tribunal’s (EAT) finding that the employment tribunal erred by ordering the employer to re-engage the claimant in the China role when he did not meet one of the essential requirements and where the employer had a genuine and rational belief that the employee would not be capable of fulfilling the role.
The decision, Kelly v PGA European Tour [2021] EWCA Civ 559, concerned the proper approach to the making of orders for the re-engagement of employees who have been unfairly dismissed.
Dismissing the appeal, Lord Justice Lewis said employment tribunals should follow the approach taken by the EAT in United Lincolnshire NHS Foundation Trust v Farren [2017] ICR 513. ‘The question is whether the employer had a genuine, and rational, belief that the employee had engaged in conduct which had broken the relationship of trust and confidence between the employer and the employee,’ he said.
‘Mere assertion by an employer that it does not believe that the employee would, if re-engaged, be able to meet the demands of the role will be insufficient. But if the employer is able to establish that it genuinely and rationally had such a belief, that will be relevant to, and probably determinative of, the question of whether it is practicable for an employer to comply with an order for re-engagement.’
Lewis LJ said, later in the judgment, that: ‘Furthermore, the employment tribunal was not required to consider vacancies in potentially comparable or suitable employment which had arisen but had been filled prior to the remedies hearing.’
Concurring, Lord Justice Underhill added: ‘I am wary of tribunals becoming too focused on the language of “trust and confidence”, which may carry unhelpful echoes from its use in other contexts… each situation must be judged on its particular facts.’
