Kelly v PGA European Tour UKEAT/0285/18/DA & UKEAT/0338/19/DA

Appeal by the Respondent against the ET’s decision ordering re-engagement of the Claimant, and by the Claimant against the ET’s refusal to reconsider its remedy decision. Respondent’s appeal allowed, and Claimant’s appeal dismissed.

The Claimant, who was employed by the Respondent for more than 20 years, was dismissed. He claimed unfair dismissal, wrongful dismissal and direct age discrimination. The Respondent admitted that the dismissal was unfair because a fair procedure was not followed, but the ET dismissed the complaint of age discrimination at a liability hearing in 2016. At a remedy hearing in 2018, the same ET unanimously declined to order reinstatement but, by a majority, ordered the Claimant to be re-engaged in a different role; it also set out its conclusions on mitigation and Polkey even though it did not need to consider making basic and compensatory awards. The Respondent appealed against the 2018 decision; also, the Claimant appealed against the ET's refusal to reconsider the 2018 decision on the grounds that material breaches of disclosure by the Respondent had come to light.

The EAT held, allowing the Respondent's appeal, that it had not properly been open to the ET, on the facts found at the 2016 hearing, to order re-engagement of the Claimant; since the only possible outcome was that re-engagement should have been refused, the EAT substituted an order to that effect. However, the matter would be remitted to the same ET to give fresh consideration to the Polkey question and determination of the compensatory award. The Claimant's appeal was dismissed.

Published: 04/09/2020 19:19

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