Amongst the panoply of powers enjoyed by Employment Tribunals (ETs) is the remit to order re-engagement of unfairly dismissed employees. A guideline Court of Appeal ruling, however, underlined some of the practical reasons why that power is only exercised relatively rarely.
The case concerned the former group marketing director of an international sporting body. After 26 years of service, he was dismissed shortly after the arrival of a new CEO who formed an unfavourable view of his ability to remain part of the employer’s senior leadership team. Following an ET hearing, his complaint of age discrimination was rejected.
However, after the employer conceded that his dismissal was procedurally unfair, the ET directed his re-engagement as commercial director of the employer’s office in China. His former role having ceased to exist, reinstatement was not an option. The re-engagement decision was subsequently overturned by the Employment Appeal Tribunal, which ruled that his remedy should be restricted to compensation.
Rejecting his challenge to that outcome, the Court noted that the CEO genuinely and rationally believed that he was not capable of fulfilling the senior management role the employer wished him to perform. In ordering his re-engagement, the ET had fallen into the trap of substituting its own views regarding his capability for those of the employer.
After discovering that he had secretly recorded meetings, the CEO took the view that the breakdown of trust and confidence between them rendered it impracticable to re-engage him. The employer was also entitled to rely on the fact that he could neither speak, read nor write Mandarin, an essential requirement for the role in China.