Re-Engagement may not be suitable if employer has lost trust in employee’s abilities

In the case of Kelly v PGA, the EAT held that an employment tribunal was wrong to make an order of re-engagement as the employer had lost trust and confidence in an employee’s ability to carry out his role, and this belief was rationally held.

The Claimant was dismissed for poor performance. The tribunal in the first instance ordered re-engagement to a different role as a remedy in respect of his dismissal.

The employer appealed and the EAT held that all evidence available at the time of the remedy hearing can be considered, and that it is not only conduct relating to the dismissal that can impact the question of re-engagement. Due to this, the EAT held that there was no reason why belief about performance or capability could not be relied upon as causing a break down in trust and confidence, and that such a break down made re-engagement inappropriate. The EAT therefore substituted an order refusing re-engagement.

The judgement in respect of this remedy hearing provides a reminder to employers and employees of the importance of trust and confidence in an employment relationship, which is an implied term of all employment contracts. It shows that an employer’s perception of poor performance or capability may be enough to defeat a request for re-engagement meaning that actual evidence of capability issues can be irrelevant to this specific remedy.