An employer cannot avoid the consequences of failing to comply with a re-engagement order simply by arguing, months later, that the relevant job was never available. The Employment Appeal Tribunal has confirmed that the statutory test looks back to the date by which the order required the employee to be re-engaged, while placing the burden of proving impracticability on the employer.
What did the Employment Appeal Tribunal decide?
In P&O European Ferries (Irish Sea) Ltd v Rennie [2026] EAT 177, handed down on 11 November 2026, Judge Barry Clarke dismissed the employer’s appeal against an Employment Tribunal decision that it had been practicable to comply with an order for re-engagement.
The central issue was the date on which practicability had to be assessed under section 117(4)(a) of the Employment Rights Act 1996. The EAT held that the relevant date was 1 August 2024, the date by which the original order required P&O European Ferries to re-engage Mr Craig Rennie. It was not the date of the later hearing in November 2024.
The EAT also rejected the argument that the Employment Tribunal could not decide the issue without making a positive finding that the Port Technical and Assets Manager role still existed on the compliance date. The employer had the burden of proving that compliance was not practicable, and the tribunal was entitled to reject the evidence of the employer’s only witness.
How did the re-engagement dispute arise?
Mr Rennie had worked for P&O European Ferries, or a predecessor within its group, from 1 January 1996 until his dismissal on 2 August 2023. He was latterly Port Manager for Cairnryan and Larne. In 2023, the company began a restructuring programme known as Project Fleet, which removed his role and created six Senior Port Duty Manager positions, including one at Cairnryan.
Mr Rennie applied for the Cairnryan Senior Port Duty Manager position and was the only applicant. The Employment Tribunal found that he would have been appointed if his application had been taken forward. Instead, after he sought information about the role’s pay and duties, the company required him to confirm whether he wished to proceed within a short timescale. His application was not progressed and he was dismissed by reason of redundancy.
The Employment Tribunal found the dismissal unfair. Mr Rennie did not seek reinstatement to his former role, which had been made redundant. He sought re-engagement in suitable alternative employment. During the remedy proceedings, he gave evidence that a vacancy for a Port Technical and Assets Manager (Irish and North Sea) role had been advertised. The tribunal accepted his evidence that he had seen the advertisement shortly before 20 May 2024 and was willing to take the role.
- Mr Rennie’s employment with P&O European Ferries or a group predecessor began.
- Mr Rennie was dismissed by reason of redundancy following the Project Fleet restructure.
- The claimant told the Employment Tribunal that he had seen an advertised Port Technical and Assets Manager vacancy.
- The Employment Tribunal indicated that it intended to order re-engagement in the Port Technical and Assets Manager role.
- The re-engagement order was made, requiring compliance by 1 August 2024.
- The deadline for P&O European Ferries to comply with the order passed without re-engagement.
- The Employment Tribunal decided that the employer had not shown compliance to be impracticable.
- The Employment Appeal Tribunal dismissed the employer’s appeal.
Which date governs the practicability test?
P&O argued that the tribunal should assess practicability as at 26 November 2024, when the further hearing took place. It relied on earlier authority concerning the date on which a tribunal considers whether to make a re-engagement order in the first place.
Judge Clarke distinguished that first-stage exercise from the second-stage question under section 117(4)(a). Before making an order, the tribunal looks forward and considers whether it would be practicable for the employer to comply. Once the deadline has passed without compliance, the tribunal looks back and asks whether it was practicable to comply with the order by the date specified.
The statutory wording was important. Section 117(4)(a) asks whether it “was not practicable to comply with the order”. The question is expressed in the past tense and concerns compliance with the order as made. Section 115(2)(f) requires the order to specify the date by which it must be complied with. Here, that date was 1 August 2024.
The EAT relied on the Court of Appeal’s reasoning in Port of London Authority v Payne and the EAT’s decision in PGA European Tour v Kelly. Those authorities supported the conclusion that the second-stage assessment is tied to the original compliance deadline, not to the date on which a later hearing happens to be listed.
“The date fixes the question, not the evidence by which the question is answered.”
Judge Barry Clarke, [2026] EAT 177
The EAT added that evidence from before or after the compliance date may still be relevant if it helps answer whether compliance by that date was practicable. The date fixes the issue to be determined; it does not impose an artificial limit on the evidence that may be considered.
Why did the employer’s evidence fail?
At the November 2024 hearing, P&O’s sole witness on the issue was its Director of Port Operations, Mr Steer. The employer’s case was that the Port Technical and Assets Manager role had never existed. It argued that Mr Rennie had confused it with a different vacancy, the Ports Technical Strategy Manager post.
The Employment Tribunal rejected that account. It was concerned by Mr Steer’s evidence at an earlier hearing in April 2024, when he had not disclosed the separate senior Ports Technical Strategy Manager vacancy despite being involved in its recruitment process. The tribunal found that he had deliberately concealed that vacancy and described his earlier evidence as dishonest. It therefore did not accept his later evidence that the Port Technical and Assets Manager role had never existed.
The tribunal preferred Mr Rennie’s evidence that he had seen the Port Technical and Assets Manager vacancy advertised shortly before 20 May 2024. It accepted that the advertisement had ceased to appear externally by 20 June, but there was no evidence explaining whether the post had been filled, withdrawn or recruitment had simply been paused. The employer did not put forward an alternative case explaining what had happened to the role by 1 August 2024.
The EAT held that the employer bore the persuasive burden under section 117(4)(a) and had failed to discharge it. A tribunal must ordinarily resolve material factual disputes, but this was not a case in which the evidence was so finely balanced that the tribunal could not reach a view. The judge had assessed the evidence, rejected the employer’s only witness and preferred the claimant’s account.
The fact that the tribunal had not seen the original vacancy advertisement did not change the result. It had the claimant’s accepted evidence about the advertisement, his evidence that he believed he could perform the role, his experience managing port assets and the employer’s failure to challenge that evidence when it was given. The EAT said the evidential material was limited in part because of the way the employer had conducted the hearing; that did not shift the statutory burden away from it.
The EAT also refused to treat the disappearance of the advertisement as conclusive proof that the role was no longer available. An advertisement may be removed because a vacancy has been filled, withdrawn or temporarily paused. The weight to attach to that evidence was for the Employment Tribunal, and its conclusion did not come close to the high threshold for appellate intervention on perversity grounds.
What happens next?
The appeal was dismissed. The EAT did not order P&O to re-engage Mr Rennie, and the judgment makes clear that the statutory scheme does not give an employee an absolute right to be re-employed after an employer fails to comply with an order of this kind. The consequence is financial rather than an order compelling the employer to take the employee back.
Because P&O did not satisfy the tribunal that compliance was impracticable, the exception in section 117(4)(a) did not apply. The Employment Tribunal must therefore determine the compensation for unfair dismissal and the additional award under section 117(3). The additional award is prescribed by the statute as between 26 and 52 weeks’ pay; the amount to be awarded remains for the Employment Tribunal to decide.
For employers and employment practitioners, the judgment underlines the importance of keeping clear records of vacancies, recruitment decisions and the reasons why a re-engagement order cannot be implemented. Where an employer relies on the disappearance of a vacancy, it should be prepared to explain what happened to the role by the compliance deadline. A later hearing date does not reset the date against which practicability is assessed.
Frequently asked questions
What date is used to assess practicability under section 117(4)(a)?
The date by which the re-engagement order required compliance. In this case, the relevant date was 1 August 2024, not the date of the later hearing.
Who has to prove that compliance was not practicable?
The employer. Section 117(4)(a) places the burden on the employer to satisfy the tribunal, on the balance of probabilities, that it was not practicable to comply with the order.
Did the EAT find that the Port Technical and Assets Manager role definitely existed on 1 August 2024?
The EAT held that the Employment Tribunal was not required to make a separate positive finding about the role’s existence on that date before deciding that the employer had failed to prove impracticability. The employer’s only witness had been disbelieved, and the burden remained on the employer.
Did the EAT order P&O to re-employ Mr Rennie?
No. The appeal was dismissed, but the statutory consequence of non-compliance is financial compensation and an additional award, rather than an order compelling re-engagement.
What compensation remains to be decided?
The Employment Tribunal must determine the unfair-dismissal compensation and the additional award under section 117(3) of the Employment Rights Act 1996. The additional award is between 26 and 52 weeks’ pay.