Can an employment tribunal order re-engagement where the employer believes that trust and confidence has broken down?
No, not if the belief is rationally held, held the EAT in Kelly v PGA European Tour.
The Claimant was dismissed for poor performance but, before he was dismissed, he covertly recorded two meetings in which the employer tried to resolve the matter informally. The tribunal refused to order reinstatement but instead ordered re-engagement to a different role.
The EAT 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. Events of which the employer was not aware at the time of the dismissal can be taken into account, and there is no reason in principle why a belief about capability or performance cannot be relied upon as causing trust and confidence to break down. The EAT allowed the appeal and substituted an order refusing re-engagement.
Thanks to James Medhurst of Royds Withy King for preparing this case summary