For those of you in HR, the answer may surprise you…because it’s “No”! In certain circumstances, a dismissal can still be fair even where the employer refuses to hear an appeal.
Now, don’t get too excited! In the vast majority of circumstances, the right of appeal should still be offered and the appeal process followed. However, it’s not always essential to the fairness of a dismissal as confirmed in the recent EAT case: Moore v Phoenix Product Development Limited.
The Claimant invented the “Propelair Toilet”, which is manufactured and marketed by the Respondent, of which he was a founder. In 2017, the Claimant was replaced as CEO but remained as an employee and director. He had difficulty in accepting the new order and that he was not in charge. Following a number of related incidents, including some particularly aggressive and foul-mouthed communications with fellow directors, the Claimant was dismissed by the Respondent who cited a loss of confidence in him and his ability to adapt. He was not offered a right of appeal.
The Claimant submitted a claim to the Employment Tribunal arguing that the dismissal was procedurally and substantively unfair. The claim was rejected. The Tribunal found that he was dismissed for Some Other Substantial Reason (a potentially fair reason under the Employment Rights Act 1996), namely that there was an irreparable breakdown in relations, and that the dismissal was not unfair. The Claimant appealed the decision to the EAT.
The EAT ultimately agreed with the Tribunal. In this case, the Claimant’s conduct and attitude rendered him entirely responsible for the breakdown in the relationship with the board of directors to the point that allowing an appeal would have been pointless. Whilst the EAT noted that in normal circumstances, an appeal would form part of a fair procedure, it held that this was not an absolute necessity and the specific circumstances of the case must be taken into consideration.
In this case, the Respondent was a small organisation, the Claimant held a senior position, the relationship had broken down irretrievably and the Claimant himself was unrepentant. This meant that an appeal would have been nothing more than an exercise in futility and so to dispense with that process in these circumstances did not render the dismissal unfair.
Whilst this decision is likely to be welcomed by employers, it’s context specific and so shouldn’t be taken as giving the go-ahead to the widespread use of abridged dismissal procedures. Each case will turn on its own facts and we would always recommend seeking professional advice on individual situations. Therefore, if you’re grappling with an employment situation that may result in termination and are unsure about certain aspects of the process, please contact us on 01942 727200 for an initial conversation without charge or obligation.