Although an appeal against a decision to dismiss would normally be part of a fair procedure, the Employment Appeal Tribunal (EAT) held in Moore v Phoenix Product Development Ltd that there are exceptions to the rule. Otherwise, if tribunals were to take a “fixed approach,” they would be in breach of the legislation which states that the “circumstances” of every case have to be taken into account.
Mr Moore is the inventor of a water-efficient toilet manufactured and marketed by Phoenix Product Development Ltd (PPDL) of which he was also the CEO. Although the product had potential, its production and commercial development was slow with only 715 units sold as of 2016, despite millions of pounds of external investment.
In 2017, Mr Moore was replaced by Mr Dylan Jones as CEO. Although he stayed on as an employee and a director, he was reluctant to accept that PPDL was no longer his company. His attitude and conduct resulted in a deterioration in his relations with his fellow directors. In March 2018, Mr Jones commissioned an external specialist to conduct a review of the company which concluded that the fundamental problem lay with Mr Moore.
After further meetings at which Mr Moore agreed to work with Mr Jones in the interests of the company, other concerns about his conduct came to light and in May 2018, he was given six months’ notice of termination and placed on garden leave. The letter of termination did not, however, tell him he had a right of appeal. He was offered (but did not lodge) a right of appeal with regard to a grievance he had submitted.
Mr Moore claimed unfair dismissal.
The tribunal rejected his claim, finding that he was dismissed for some other substantial reason (SOSR) following an irreparable breakdown in relations with the board. In particular, it found that he had been disrespectful, entirely unrepentant and lacking insight.
With regard to the company’s failure to offer him a right of appeal against the decision to dismiss, the tribunal decided that it was unlikely that he would have used it as he had not taken the opportunity to do so in relation to the outcome of the grievance.
Mr Moore appealed on a number of grounds. In particular, he argued that the tribunal had failed to address the specific allegations of unfairness he had levelled against the company.
Dismissing the appeal, the EAT held that the tribunal had considered the main allegations cited by Mr Moore with regard to unfairness and was not required to deal with every evidential point he raised.
With regard to the failure to offer an appeal, the EAT made clear that although an appeal would normally be part of a fair procedure, that was not always the case. Otherwise, if tribunals were to take such a “fixed approach” they would be in breach of the clear terms of section 98(4) of the Employment Rights Act 1996 which dictate that the “circumstances” of each case are to be taken into account.
In this case, those “circumstances” included the fact that Mr Moore was a board-level director and employee; that the company was relatively small; and that the tribunal had found that Mr Moore himself had brought about an “irreparable breakdown” in trust and confidence. This breakdown was considered to be “destructive”, destabilising and a “drag-factor” for the company. He was also unrepentant about his conduct and attitude and had not shown any sign that he was likely to change.