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Does the lack of an appeal inevitably make a dismissal unfair?

Posted
September 15, 2021
Employment Law

It's often assumed that in order for a dismissal to be fair, the employee must be given the opportunity to appeal the employer's decision. But is this really the case?

Mandatory requirement or just good practice?

In the recent case of Moore v Phoenix Product Development Limited, problems arose when Mr Moore went from being the Chief Executive Officer of Phoenix Products to a more junior position (albeit still on the board of directors). He repeatedly clashed with the new CEO, despite efforts being made to build a more constructive relationship. Ultimately, the company concluded that its relationship with Mr Moore had irretrievably broken down. As a result, he was dismissed and he was not offered the opportunity to appeal.

Both the Employment Tribunal and the Employment Appeal Tribunal concluded that given the circumstances of the case, an internal appeal would have been pointless. As a result, the lack of an appeals process did not make the dismissal inevitably unfair.

Limited to its facts?

Admittedly, the facts of the Phoenix Product case are fairly unusual. However, it is worth noting that in a recent case concerning redundancies (Gwynedd Council v Barratt and anor), the Court of Appeal no less accepted that the mere absence of the opportunity to appeal a redundancy dismissal decision did not make that dismissal unfair. Instead, it was simply one of many factors for an Employment Tribunal to weigh up when deciding whether a dismissal is unfair or not.

So should we just forget about appeals then?

Despite the outcome of these recent cases, in most dismissals, offering the employee the opportunity to appeal the dismissal decision will still be the right thing to do. However, these judgments remind us that each case may need to be considered on its own facts.

If you are wondering about the wisdom of offering or accepting a request for an appeal, please get in touch. We would be happy to lend a hand.

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