Letting go – it’s not appealing!

The case of ‘poor’ Mr Moore who struggled in all senses of the word to let go of his company and his invention, is another example of the contested phrase; the exception proves the rule!

Any employment lawyer worth their money will reiterate the importance of a fair dismissal procedure culminating in the right to appeal. The Employment Appeal Tribunal (EAT) in the case of Moore v Phoenix Product Development Ltd, however, ruled that the company’s failure to offer Mr Moore the right to appeal his dismissal was fair. 

Details
In this ‘letting go’ tale, Mr Moore was the proud inventor of a water efficient toilet. He founded Phoenix Product Development to manufacture and market this product and was its CEO from 2001 until 2017. After his replacement in 2017, he remained an employee and director of the business. However, he struggled to accept this new position, becoming antagonistic towards the new CEO and outworked these feelings both within and outside the company. Following a series of incidents in which Mr Moore behaved both unprofessionally and in a combative fashion, the board lost confidence in him and his ability or desire to change and so he was dismissed. He was not offered the right to appeal this decision. 

Tribunal claim
Mr Moore took his case for unfair dismissal to tribunal, claiming procedural and substantive unfairness. This was rejected. The tribunal stated that Mr Moore was dismissed for some other substantial reason (SOSR) due to the irreparable breakdown in relationships and that the failure to offer an appeal did not render the dismissal unfair. 

Employment Appeal Tribunal
Mr Moore’s appeal to the EAT was dismissed. The EAT held that given the circumstances of the case i.e. Mr Moore’s combative attitude and failure to acknowledge his behaviour, an appeal would have been futile. It did note that an appeal will normally be part of a fair procedure but not always the case – and here we have our exception to the rule. The EAT stated that the circumstances of the case were such that no right to appeal was necessary. In this part of the judgment, the judge referred to section 98(4) of the Employment Rights Act 1996, which states that the circumstances of any dismissal will be considered when judging a dismissal fair or otherwise. The salient circumstances were as follows; the smallness of the organisation, the seriousness of the relationship breakdown, the seniority of Mr Moore within the company and the fact that he continued to be unrepentant of his actions. Because of these circumstances, the EAT deemed that an appeal would have had no effect on the decision and hence was unnecessary.  

What can we learn?

• This is an exceptional case and so a right of appeal remains key in all disciplinary and grievance policies and procedures. The judge himself stated that an appeal is normally required for a fair procedure.
• However, there is a window within the Employment Rights Act that allows room for manoeuvre – section 98(4) requires circumstances to be taken into consideration of fairness.
• Whilst this case was unusual in many ways, most notably Mr Moore’s difficulties in relinquishing what he saw to be his company and product, other circumstances are more familiar. Smaller organisations may struggle for a further tier of management to hear an appeal. Where there has been a major relationship breakdown, often the circumstances behind an SOSR dismissal, if there is no indication of any change in behaviour then it is logical that an appeal is futile, as it is not going to overturn a dismissal decision as the breakdown has no chance of resolution. 
• That said, detailed evidence as to the existence of these circumstances e.g. attempts made to resolve the breakdown and solutions given over a period of time will be key, and it is likely that a number of circumstances will need to exist to make this case applicable. It is unlikely that a small organisation can routinely use its size to rule out any appeals in a dismissal case when there are options for bringing in outside advisers etc. for an appeal. 
• This case is both sad and interesting; the former because it was a tragic end to someone’s working life and dream, and interesting as it does open the door, if only a crack, to considering other circumstances which can often be forgotten when assessing fairness. We would, however, advise seeking specific legal advice before opening that door, as inevitably these cases rise and fall on their individual merits and the evidence available.

For more information

For additional information or assistance, please contact Jackie Morris.

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