This question was considered in the recent case of Kelly v. PGA European Tour.
Mr Kelly, who had begun employment with the PGA in 1989, was dismissed from his role as Group Marketing Director over concerns about his performance and willingness to “buy in” to the newly appointed Chief Executive’s ideas. Mr Kelly subsequently brought an unfair dismissal claim, but this was not before he had covertly recorded the meetings at which his dismissal had been discussed and effected.
The PGA actually admitted that Mr Kelly’s dismissal was unfair, based on a lack of procedure. In the first instance, the tribunal decided that Mr Kelly should be re-engaged to the role of Commercial Director of the China PGA Tour, for which the ability to speak Mandarin was an essential requirement.
The tribunal considered that any trust and confidence issues arising following Mr Kelly’s covert recording of meetings were not so significant as to make re-engagement impracticable. Further, it considered that Mr Kelly’s willingness to learn Mandarin and his proficiency in languages meant that re-engagement was also practicable from this standpoint.
The PGA appealed, arguing that the tribunal had erred in considering for itself whether trust and confidence had been damaged instead of asking whether the PGA had a rational basis for believing that it had. The EAT allowed the appeal.
The EAT held that it is the employer’s view of trust and confidence which is key, and this view should only be tested by the tribunal as to its genuineness and rationality. The EAT ruled that the tribunal had overstepped the mark in reaching its own view. With regards to Mr Kelly’s covert recording, which only came to light following his dismissal, the EAT also held that there does not have to be conduct contributing to the dismissal to affect the question of re-engagement, and all of the evidence available at the time of the remedy hearing is to be considered. There was also a finding that the tribunal had overstepped regarding its view on Mr Kelly’s ability to rapidly learn Mandarin, and had failed to give adequate weight to the PGA’s commercial judgment and requirements for the role.