The right of appeal against dismissal

Year Published: 2021

Is it ever fair for an employer not to hear an employee’s appeal against dismissal? Jennifer Platt, Senior Associate in the Employment and HR team, discusses the recent Employment Appeal Tribunal (EAT) decision in Moore v Phoenix Product Development Limited.

 

Background

 

The claimant was an inventor of a water efficient toilet, the ‘Propelair Toilet’, and was Chief Executive Officer (CEO) of Phoenix Product Development Limited, which manufactured and marketed the product. The claimant was replaced as CEO in 2017 but remained an employee and director of the company. However, he had difficulty in accepting that he was no longer in charge and that the company was, essentially, no longer his.

 

As a result, the working relationship began to deteriorate. The claimant was openly critical of the new CEO’s performance during a meeting with an investor and it was found that he was trying to sabotage any new CEO coming into the business. In 2018 a review of the company was undertaken by an external party who determined that the fundamental problem lay not with the current CEO, but with the claimant and his continued attempts to sabotage the new CEO.

 

Dismissal

 

In May 2018 a meeting was held between the claimant and the other directors of the company in which six allegations were put to the claimant relating to his conduct.

 

The claimant was dismissed due to the irretrievable breakdown in the working relationship, which was almost entirely as a result of his attitude and conduct. Only the claimant dissented on the decision to terminate his employment. He was given six months’ notice and placed on garden leave. The claimant was not offered the right to appeal the decision to dismiss him, which would normally form part of a fair process. The claimant challenged this in his claim to the Tribunal.

 

The Tribunal’s decision

 

The Employment Tribunal dismissed the claimant’s claim for unfair dismissal. It found that an appeal would have been ‘futile’ given the breakdown in the working relationship, which the Tribunal noted the claimant had been responsible for. The Tribunal determined that it was not part of a fair procedure to conduct an appeal just for the sake of it and where it would be ‘truly pointless’ to do so. They also noted that they felt the claimant was unlikely to have appealed if he had been given the opportunity to do so and at no point had he requested an appeal.

 

The claimant appealed to the Employment Appeal Tribunal (EAT). The EAT said the Tribunal were right to find that an appeal in this situation would have been futile and that this factor was a relevant consideration. As such his dismissal was not unfair.

 

What to take away from the decision

 

Although this case highlights than an appeal will not always be necessary, in reality the situations in which it will be reasonable not to offer an appeal are likely to be few and far between. In most cases it would be difficult to show that an appeal would be ‘futile’. It is important that employers don’t make an assessment that something is futile unless the circumstances are very clear. The safest option in most cases will always be to offer a right of appeal. If an employee chooses not to participate, that strengthens the employer’s position.   The right of appeal goes to an assessment of the overall reasonableness of a decision and whilst exceptional cases exist, employers are best placed to offer the right of appeal in almost all situations.

For more information, please contact:

Jennifer Platt – SAS Daniels LLP   –  0161 475 7669

Aisling Foley – SAS Daniels LLP  –   0161 475 1210

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