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Lack of trust and confidence in employee’s capability may be relevant to practicability of re-engagement

Makbool Javaid, Partner - Simons Muirhead & Burton

In Kelly v PGA European Tour, the EAT had to consider the scope of an ET’s powers to order re-engagement to a different job which is comparable or suitable given the nature of the employment, as a remedy for finding unfair dismissal. The employer had conceded that K was unfairly dismissed and the ET, by a majority, ordered that K be re-engaged in the role of Commercial Director, China PGA European Tour. The EAT upheld the employer’s appeal against the Order. The majority had erred by not considering, and deciding, whether the employer had genuinely and rationally concluded that it lacked trust and confidence in K’s capability. The evidence clearly showed that the Chief Executive, Keith Pelley, had formed the view that K was not capable of fulfilling the role he wished him to perform going forward and considered that he was not suitable for the role of commercial director. That view came as a result of Pelley’s due diligence, his own dealings with K, negative feedback he had received from members of K’s team and Pelley’s conclusion that K had not bought into his ideas and had been unable to embrace a change of CE. The ET had also, in any event, erred, by ordering re-engagement to a position in respect of which K did not meet an essential requirement for the job, i.e. he did not speak Mandarin.

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