The Employment Appeals Tribunal (‘EAT’) has overturned a decision of the Employment Tribunal (‘ET’) to impose re-engagement as a remedy following a finding of unfair dismissal after it failed to consider an employer’s genuine and rationally held belief that it lacked trust and confidence in the employee.
The Claimant was dismissed by the Respondent following concerns about his performance. The Claimant brought a claim for unfair dismissal, following which, the Respondent admitted that fair procedures had not been followed and that the dismissal was unfair.
The ET then moved on to decide the appropriate remedy to award the Claimant and awarded re-engagement to a different role. This role required the Claimant to speak Mandarin, which he did not. The ET also held that the Respondent’s argument that they had lost trust and confidence in the Claimant was not significant enough to prevent an award of re-engagement. The Respondent appealed.
The EAT allowed the appeal and agreed with the Respondent that the ET should have considered whether the Respondent had genuinely and rationally concluded that it lacked trust and confidence in the Claimant’s capability. In deciding this, the EAT held that it is necessary to test and evaluate the available evidence rather than substitute your own view as the ET had done. The key question is whether re-deployment would be practicable as if not, it would not be capable of being carried into effect with success.
The EAT also rejected the argument that trust and confidence is only relevant in the context of conduct rather than capability and held that the latter is also important to the question of what is practicable.
It further held that the ET was wrong to order re-engagement to a position which the Claimant did not meet the essential requirements for. The EAT concluded that the ET’s failure to give weight to the Respondent’s commercial judgment in this respect “overstepped the mark” and the ET was wrong to substitute its own view on whether the ability to speak Mandarin was essential for this role.
- Implications for employers
This decision provides a useful reminder to employers on the power tribunals have in respect of remedies and specifically to order reinstatement or re-engagement of an employee. To avoid potential claims from employees, it is important to follow a fair procedure when considering dismissal and to ensure that the dismissal is fair in all the circumstances. Employers should also seek guidance if they are unsure on the best course of action.
It is also essential to ensure that the reasons behind any decision to dismiss can be properly evidenced as the tribunal must take into account an employer’s rational, as this case has demonstrated.