CAN A DISMISSAL STILL BE FAIR IF THE EMPLOYER REFUSES TO HEAR AN APPEAL?

Is it possible for a dismissal to still be fair if the employer refuses to hear their employee’s appeal?

Can a dismissal be fair if your employer refuses to hear your appeal?

Moore v Phoenix Product Development Limited is an example that in certain circumstances, it can be.

Case background

Mr Moore (M – the Claimant) was the CEO of Phoenix Product Development Limited (the Respondent) from 2001 until 2017.

While working for the Respondent, M invented the water-efficient toilet – the “Propelair Toilet” which uses a combination of water and air to produce the flushing operation. This in turn reduces the amount of water required to flush making it a product for the moment, with increasing concerns around water shortage and climate change. 

The product was manufactured and marketed by Phoenix Product Development Limited and whilst it had great potential, its production and commercial development were slow and problematic. Despite millions of pounds of external investment being invested into the product, only 715 units were sold as of 2016. 

Unfortunately, this led to M being demoted and Mr Dylan Jones taking over as the CEO. 

Although M remained the director and employee of the company, he had difficulty accepting he was no longer leading it. 

Consequently, M’s attitude and conduct within the company and towards others caused a deterioration in his relations with his fellow directors. This lead to a conduct review of the company. 

Unfair dismissal refused by the Employment Tribunal

Following the assessment, the Tribunal found that the Claimant and Mr Jones shook hands. M met with the new CEO of the company, Mr Jones, and agreed to make things work. 

However, it was later reported that M remained ‘combative’, sending aggressive emails containing foul and abusive language. M also did not appreciate the role of the Respondent’s investors in keeping the business afloat; M was found to have used derogatory terms to describe some of the investors.

In view of these and multiple other matters, the Board of the Respondent considered that M’s behaviour was not in the best interests of the company and it considered how best to respond.  At one of the meetings, the Claimant was told that there would be a formal Board meeting concerning his future. M’s attitude at the board meeting was described as ‘confrontational’.

Following a series of Board meetings, four of the five directors voted to terminate the M’s employment, with only the Claimant himself disagreeing. Following the vote, M was given 6 months’ notice of termination and placed on garden leave. The letter notifying M of his termination made no mention of any right of appeal against his dismissal.  

M had raised various issues in his statement which the company treated as a grievance. The grievance was investigated by one of the non-executive directors and subsequently dismissed. Although a right of appeal against that grievance decision was notified to M, no such appeal was, made.

Appeal refused by the Employment Appeals Tribunal (EAT)

Halfway through M’s period of garden leave, the Respondent contacted M informing him that the Board had resolved to end his employment and to pay the balance of his notice in lieu. M was not satisfied with this and issued proceedings in the Tribunal claiming that he was unfairly dismissed.

The Employment Tribunal dismissed M’s claim, noting that in the circumstances of the case, the appeal would have been pointless. An appeal will normally be part of a fair procedure, but not invariably so. The circumstances of the case need to be taken into account. 

The circumstances that were considered include that the Respondent was a small organisation, relations had broken down, the Claimant held a senior position and was unrepentant. 

Furthermore, it was concluded that the Claimant was entirely responsible for the breakdown in the relationship.

Follow this link if you wish to read the Employment Appeal Tribunal transcript.

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