The Respondent in the Employment Tribunal conceded that the Claimant was unfairly dismissed. Following a contested hearing, in its 2016 Decision, the Employment Tribunal found that the dismissal was not an act of age discrimination.
At a subsequent Remedy Hearing the Tribunal, by a majority, ordered that the Claimant be re-engaged in the role of Commercial Director, China PGA European Tour. The Respondent’s appeal against that Order succeeded. The majority had erred by not considering, and deciding, whether the Respondent had genuinely and rationally concluded that it lacked trust and confidence in the Claimant’s capability, applying United Lincolnshire Hospitals NHS Foundation Trust v Farren [2017] ICR 513. It had also, in any event, erred, by ordering re-engagement to a position in respect of which the Claimant did not meet an essential requirement.
The Claimant had sought a reconsideration of the remedy decision on the basis that there had been a failure to disclose vacancies for other positions that had arisen since his dismissal, but also been filled by the time of the Remedy Hearing. That was refused. The Claimant’s appeal against that decision was dismissed, as these did not, in law, fall to be considered.
Although it had ordered re-engagement, the Tribunal had also considered Polkey. However, it had erred by failing, when doing so, to consider the potential implications of findings it had made in its 2016 Decision, and what light they may have cast on the Polkey issues. That issue would therefore be remitted to the Tribunal for fresh consideration, as part of the process of deciding the compensatory award.
[2020] UKEAT 0285 – 18 – 2608
Bailii
England and Wales
Employment, Discrimination
Updated: 12 November 2021; Ref: scu.653277