Thread by @JasonBraier

1/ The CA judgment is out in Kelly v PGA on that topic all Respondent #ukemplaw-yers fear, orders for re-engagement. This judgment may take a little of the fear away given its emphasis on a respondent-friendly approach to practicability. bailii.org/ew/cases/EWCA/… #ukemplaw

2/ K was unfairly dismissed as the PGA European Tour's group marketing director. He claimed it was age discrimination. He lost on that but won on unfair dismissal. The ET ordered re-engagement as the Commercial Director, China.

3/ The EAT allowed an appeal against that decision, holding re-engagement not practicable where the employer genuinely & rationally believes the employee incapable of fulfilling the role the employer wished him to fulfil or where conduct led to a breakdown in trust & confidence.

4/ The EAT also found the ET erred in the role into which it ordered re-engagement as fluency in Mandarin was a requirement of the role, whereas K couldn't speak it.

5/ Separately, the EAT held an employer needs only disclose roles available at the time of the remedy hearing, not those which had already been filled by that date.

6/ At the ET, unfair dismissal had been conceded. In considering the age discrimination case, the ET accepted the new PGA chief exec had formed a negative view of K's performance & that this was why he had been dismissed, not his age (K had been encouraged to retire).

7/ When the ET considered re-engagement, it held the China job the only prospect. PGA asserted 3 reasons against re-engagement: (i) concerns re ability to perform; (ii) loss of trust through K covertly recording meetings; (iii) the Mandarin issue. The ET ordered re-engagement.

8/ The majority in the ET considered the performance/trust issues not so significant to render re-engagement impracticable. The minority was persuaded by the 3 arguments raised by the PGA, & especially the language problem.

9/ The EAT allowed PGA's appeal, holding that genuine & rational beliefs K lacks the ability to perform the role may render re-engagement impracticable, as may lost trust & inability to meet an essential requirement of the job. The EAT warned against substitution mindsets.

10/ The 1st issue on appeal was whether the ET should have widened consideration to roles filled during the period following the unfair dismissal. That ground depends on the width of ERA s.116(5).

11/ The CA was clear that s.116(5) was limited to the replacement of the unfairly dismissed employee's role & didn't extend to other comparable or suitable roles which had been filled prior to the remedies hearing.

12/ On how the practicability test should be applied, the CA approved the EAT's decision in Farren that the question is whether the employer had a genuine & rational belief the employee engaged in conduct which broke the relationship of trust & confidence.

13/ It is for the employer to establish that genuine & rational belief. If it does, it is likely to be determinative of practicability. It's an objective question but must be judged from the employer's perspective.

14/ It's important that the ET's findings on practicability aren't inconsistent with the findings of fact made at the liability stage & that findings of fact from the liability judgment which are relevant to practicability are taken into account.