Scott Kelly v PGA European Tour
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis,Lady Justice Elisabeth Laing,Lord Justice Underhill |
| Judgment Date | 19 April 2021 |
| Neutral Citation | [2021] EWCA Civ 559 |
| Docket Number | Case No: A2/2020/1559 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 April 2021 |
[2021] EWCA Civ 559
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ AUERBACH
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(VICE-PRESIDENT OF THE COURT OF APPEAL (CIVIL DIVISION))
Lord Justice Lewis
and
Lady Justice Elisabeth Laing
Case No: A2/2020/1559
David Mitchell and Philippe Kuhn (instructed by M Law LLP) for the Appellant
Paul Nicholls Q.C. (instructed by Fox Williams LLP) for the Respondent
Hearing date: 30 March 2021
APPROVED JUDGMENT
Introduction
This appeal concerns the proper approach to the making of orders for the re-engagement of employees who have been unfairly dismissed. I will refer to the appellant and the respondent as the claimant and respondent as they were referred to in the tribunals below.
In brief, the claimant, Scott Kelly, was unfairly dismissed from his post as Group Marketing Director for the PGA European Tour. The employment tribunal 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 employment tribunal.
The Employment Appeal Tribunal (“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 employment tribunal 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 employment tribunal 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 employment tribunal 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. It did not consider it necessary to remit the matter to the employment tribunal as the only legally correct outcome given the findings of fact was that re-engagement should not have been ordered.
The EAT also held that the employment tribunal had wrongly failed to consider whether there was a chance that the claimant would have been fairly dismissed in any event and remitted that matter to the employment tribunal to consider that issue when assessing compensation. Finally, the EAT held that the respondent was only required to disclose vacancies existing at the time of the remedies hearing and it was not required to disclose other comparable or suitable posts that had already been filled by that date. It therefore dismissed the claimant's appeal against the employment tribunal's refusal to reconsider its decision. The claimant appeals against all those rulings. We had written and oral submissions from Mr Mitchell for the claimant. We had written submissions from Mr Nicholls Q.C. for the respondent but it was not necessary to call on him for oral submissions.
The Legal Framework
A complaint that a person has been unfairly dismissed may be brought in an employment tribunal which may, if the complaint is upheld, award one or more of the remedies provided for in Chapter II of Part X of the Employment Rights Act 1996 (“the Act”). The remedies include an order for re-instatement or re-engagement: see section 113 of the Act. An order for reinstatement is an order that “the employer shall treat the complainant in all respects as if he had not been dismissed”: see section 114 of the Act.
An order for re-engagement is dealt with by section 115 of the Act which provides, so far as material, that:
“(1) An order for re-engagement is an order, on such terms as the tribunal may decide, that the complainant be engaged by the employer, or by a successor of the employer or by an associated employer, in employment comparable to that from which he was dismissed or other suitable employment.
“(2) On making an order for re-engagement the tribunal shall specify the terms on which re-engagement is to take place, including—
(a) the identity of the employer,
(b) the nature of the employment,
(c) the remuneration for the employment,
(d) any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of re-engagement,
(e) any rights and privileges (including seniority and pension rights) which must be restored to the employee, and
(f) the date by which the order must be complied with.”
Section 116 of the Act deals with the order in which reinstatement and re-engagement should be considered and provides that certain material considerations should be taken into account when deciding whether to make such an order. It provides that:
“(1) In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account—
(a) whether the complainant wishes to be reinstated,
(b) whether it is practicable for the employer to comply with an order for reinstatement, and
(c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.
(2) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms.
(3) In so doing the tribunal shall take into account—
(a) any wish expressed by the complainant as to the nature of the order to be made,
(b) whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and
(c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms.
(4) Except in a case where the tribunal takes into account contributory fault under subsection (3)(c) it shall, if it orders re-engagement, do so on terms which are, so far as is reasonably practicable, as favourable as an order for reinstatement.
(5) Where in any case an employer has engaged a permanent replacement for a dismissed employee, the tribunal shall not take that fact into account in determining, for the purposes of subsection (1)(b) or (3)(b), whether it is practicable to comply with an order for reinstatement or re-engagement.
(6) Subsection (5) does not apply where the employer shows—
(a) that it was not practicable for him to arrange for the dismissed employee's work to be done without engaging a permanent replacement, or
(b) that—
(i) he engaged the replacement after the lapse of a reasonable period, without having heard from the dismissed employee that he wished to be reinstated or re-engaged, and
(ii) when the employer engaged the replacement it was no longer reasonable for him to arrange for the dismissed employee's work to be done except by a permanent replacement.”
“Practicable” in this context means that reinstatement or re-engagement is not merely possible but capable of being carried into effect with success: see Coleman and Stephenson v Magnet Joinery Ltd [1975] I.C.R. 46 at 52B-C, dealing with the predecessor legislation to the Act.
In the event that an employer fails to comply with an order for re-instatement or re-engagement, the employment tribunal will then calculate the amount of compensation payable in respect of the unfair dismissal and the employer must pay an additional award of compensation (calculated in accordance with section 117 of the Act) unless “the employer satisfies the tribunal that it was not practicable to comply with the order”: see section 117(4) of the Act. In that way, an employer has a second opportunity to persuade the employment tribunal that an order of re-instatement or engagement is not practicable.
The Factual Background
The claimant was employed by the respondent as the Marketing Director of the PGA European Tour in 1989. His remit was to expand its marketing department and commercial partnerships. He performed that role successfully and was employed by the respondent for 26 years. He became Group Marketing Director in 2015 and had overall responsibility for the PGA European Tour's commercial operations.
A new chairman was appointed in May 2014 and a strategic review of the respondent was carried out by business consultants. In April 2015, the appointment of Mr Keith Pelley as the new chief executive officer was announced. Mr Pelley met the respondent's senior leadership team prior to taking up the appointment in August 2015. In October 2015 Mr Pelley had two meetings with the claimant. He told the claimant that he would like him to consider retiring at the end of the year but to continue his relationship with the respondent by becoming a consultant on a...
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