UK: tribunals should not overrule employer's genuine and rational belief that re-engagement is impracticable

A tribunal can order re-engagement of an unfairly dismissed employee where the employee seeks this (and reinstatement in the original role is not appropriate). In deciding whether to do so, the tribunal must consider whether the order would be practicable.  The Court of Appeal in Kelly v PGA European Tour confirmed that re-engagement will be impracticable where the employer holds a genuine and rational belief that the employee would not be capable of fulfilling the role or that trust and confidence has been broken. It is the view of the employer at the time that is important, not that of the tribunal afterwards.

The Court noted that it will usually be wrong for a tribunal to hold that re-engagement to a role is practicable if the employee does not meet an essential requirement of that role (such as speaking Mandarin in this case). The fact that the employee might be able to meet the requirement in future (in this case by learning Mandarin and, in the interim, using a translator) does not render the position practicable at the time the order is being considered.

It may also be impracticable to re-engage an employee where the employer has lost trust and confidence in the employee, provided the employer's view is genuine and founded on a rational basis.  It is not for the tribunal to substitute its own view.  In this case the employer's belief that trust and confidence had been broken by the employee's covert recording activities (discovered post-dismissal) was genuine and rational and so was an additional reason why re-engagement was impracticable.

Finally, there is no need for the tribunal to consider vacancies in potentially comparable or suitable employment which had arisen but had been filled prior to the remedies hearing.  Therefore employers do not have to hold off on filling possibly suitable vacancies pending the remedies hearing.