is a dismissal fair if employer refuses to consider an appeal?

Yes, held the Employment Appeal Tribunal (EAT) in Moore v Phoenix Product Development Limited. But caution should be applied.

Mr Moore was the founder the Phoenix Product Development Limited which manufactured and marketed a water-efficient toilet he invented. Mr Moore was CEO from 2001 until 2017 when he was replaced by Mr Dylan Jones. Mr Moore remained an employee and director. Following several incidents, the remaining board of directors lost confidence in Mr Moore and he was dismissed without the right of appeal.

Mr Moore brought a claim in the Employment Tribunal for unfair dismissal on grounds that his dismissal was substantively and procedurally unfair under section 98(4) of the Employment Rights Act 1996.

The Tribunal rejected Mr Moore’s claim finding that he was dismissed for Some Other Substantial Reason (‘SOSR’) citing to an irreparable breakdown in the relationship. As such Ms Moore’s dismissal was not unfair.

Mr Moore appealed this decision on six grounds, including that the ET had failed to give proper consideration to the alleged grounds of unfairness including that he had not been offered the right to appeal his dismissal. The EAT dismissing the appeal, held that the ET had considered “the principal allegations as to unfairness and was not required to deal with every evidential point raised”. The ET had been entitled to come to the conclusion it had and there was not a “checklist”.  

The circumstances of the relationship were key. Mr Moore was a board-level director and employee; the Respondent was a small organisation, the ET had found that the Claimant himself had brought about an “irreparable breakdown” in trust and confidence and he had been “unrepentant” and unlikely to change his behaviour. An appeal would have been futile.

It is clearly a balancing act. The question of whether the dismissal is fair or unfair depends on whether, in the circumstances, including the size and administrative resources of the employer’s undertaking, the employer acts reasonably or unreasonably treating it as a sufficient reason for dismissing the employee as per section 98(4) of the 1996 Act is. A prudent employer should provide the right to appeal as a failure to do so could be regarded as unfair and result in a costly lesson.

You can read the full judgment here.

This update was written by Joanne Sinclair, Trainee Solicitor, didlaw.