Employment Cases Update

Kelly v PGA European Tour [2021] EWCA Civ 559

Date published: 04/05/2021

Appeal against a judgment of the EAT which overturned an ET order for re-engagement. Appeal dismissed.

The Claimant was unfairly dismissed from his post as Group Marketing Director for the PGA European Tour. The ET held, however, that he had not been dismissed by reason of his age. The tribunal ordered that he be re-engaged in the vacant role of Commercial Director, China. The Claimant sought a reconsideration of the decision contending, amongst other things, that the Respondent should also have disclosed the existence of other comparable or suitable positions which had been already been filled prior to the remedies hearing. That request was refused by the ET. The EAT allowed an appeal by the Respondent against the order for re-engagement. The EAT held, so far as material to this appeal, that re-engagement would not be practicable if the employer genuinely and rationally believed that the employee would not be capable of fulfilling the role the employer wished him to perform or that the employee's conduct had led to a breakdown in trust and confidence. The EAT held that it was not open to the ET to order re-engagement as that was inconsistent with the facts found at the liability hearing in deciding that the reason for dismissal was not the Claimant's age. The ET had found as a fact that the Respondent had genuinely believed that the Claimant was not capable of fulfilling the role it wished him to perform and that that was a rational view. The EAT also concluded that the ET had erred in ordering re-engagement to the role of Commercial Director, China as it had found as a fact that an essential requirement of the post was that the holder be able to speak, write and read Mandarin and the Claimant could not do that. The EAT set aside the order for re-engagement. The Claimant appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal. The EAT correctly held that the ET had erred by ordering the Respondent to re-engage the Claimant in the role of Commercial Director, China when the Claimant did not meet one of the essential requirements of the role, namely to speak, write and read Mandarin, and where, on the facts as found by the ET at the liability stage, the Respondent had a genuine and rational belief that the Claimant would not be capable of fulfilling the role the Respondent would wish him to perform. Furthermore, the ET was not required to consider vacancies in potentially comparable or suitable employment which had arisen but had been filled prior to the remedies hearing. The EAT also correctly held that the ET had failed to consider whether, on the evidence, it could have assessed the chances that the Claimant would have been fairly dismissed at some stage.

Read the full text of the judgment on Bailii or click the link below to download the judgment.