The Employment Appeal Tribunal (EAT) considered whether a dismissal was procedurally unfair where no right of appeal was extended to the employee in the case of Moore v Pheonix Product Development.

Facts

The Claimant was the founder of the Respondent Company and was replaced as their CEO in 2017 by Dylan Jones. The Claimant stayed on as an employee but had difficulty in accepting that he no longer ran the Company.

In March 2018 a meeting took place between the Claimant and Mr Jones to discuss concerns about the Claimant’s behaviour including his interactions with colleagues and third parties. The Claimant would frequently describe himself by a different job title than the one he was asked to use. It was agreed that the Claimant would try to make things work. Later that year during a trip to South Africa the Claimant criticised Mr Jones and the Company to one of the Respondent’s key investors.

The Board were extremely concerned by this and convened a meeting to consider its concerns about the Claimant’s behaviour and his future with the company. At that meeting the Claimant was described as ‘thoroughly confrontational’ and did not accept that he had done anything wrong. After the meeting a majority decision was reached to terminate the Claimant’s employment. The Claimant was not offered the right to appeal the decision.

The Claimant brought a claim for unfair dismissal at the Employment Tribunal (ET). He argued that the failure to offer an appeal against the decision to dismiss him was unfair

The ET Decision

The ET found that the Claimant’s dismissal had been due to conduct and the irreparable breakdown in the working relationship of the parties. The ET found that the failure to offer the Claimant a right of appeal did not mean that the Respondent had failed to follow a fair procedure because, in all of the circumstances, the appeal would have been pointless. The Claimant appealed against this decision.

The EAT Decision

The EAT found that the ET applied the correct reasoning in its consideration of the failure to offer an appeal. Although an appeal will normally be required as part of a fair dismissal, this will not always be the case. This is because the legal test requires that the circumstances of each case are to be taken into account. The ET had found as a matter of fact that there had been an irreparable breakdown for which the Claimant was responsible and had failed to show any signs that was likely to change. It was therefore entitled to conclude any appeal would have been pointless in all of the circumstances.

What Does This Mean For Employers?

Although on the facts of this case the absence of an appeal was not fatal to the fairness of the dismissal, this is the exception rather than the rule. A unique factor of this case is that that both conduct concerns and an irreparable breakdown between the parties were factors leading to the claimant’s dismissal.

A right of appeal is a requirement of the ACAS Code which applies to disciplinary cases. Failure to offer an appeal will therefore normally render a misconduct dismissal unfair and the Employer may be subject to an uplift in compensation for failure to follow the code.

Employers should think carefully about the reason for a dismissal and the purpose of an appeal. In most cases an appeal should be offered as the opportunity to challenge a decision to dismiss the employee will be relevant to the fairness of the overall process. Employers can often take steps to make this requirement less onerous by restricting the appeal stage to the specific grounds of appeal raised by the employee, rather than a full re-hearing of the decision (depending on the facts of the case).