Dismissal fair despite no right of appeal

The Employment Appeal Tribunal (EAT) has held, in Moore v Phoenix Product Development Ltd, that a claimant was not unfairly dismissed from the company he founded after not being offered the opportunity to appeal. 

The claimant is the inventor of a water-efficient toilet. He was the CEO of the respondent, Phoenix Product Development Limited for 16 years until he stepped down in 2017, staying on as a director and employee of the company. 

Although the claimant was no longer CEO, he was unable to accept that he no longer had significant control over the company’s affairs. He was later dismissed without appeal due to an irretrievable breakdown in relationships. 

Bringing a claim to the ET, the claimant argued that his dismissal was “procedurally and substantively unfair”. 

The Employment Tribunal (ET) rejected the claim, noting that the “irreparable breakdown” in his relationship with the company meant that he was dismissed for (Some other substantial reason) SOSR and thus the dismissal was not unfair. 

The claimant appealed this decision to the EAT, on the following grounds: 

  1. The ET had failed to reach a “reasoned determination as to whether the dismissal was fair” 
  2. The ET erred in its application of relevant case law by finding that the respondent not offering an appeal did not make the dismissal unfair 
  3. The ET erred by assuming that he would not have appealed his dismissal if he had been offered the opportunity 
  4. The ET had failed to establish the correct facts and/or “apply the correct burden of proof in finding that the Claimant was 100% culpable for his own dismissal”; and 
  5. The ET’s reasons for dismissing the claim were inadequate. 

The EAT upheld the ET’s decision that the claimant was fairly dismissed despite not being given a right to appeal. The EAT found that an appeal would have been futile in these circumstances and that it was not in fact necessary for the respondent to stipulate that there was a right to appeal. 

Turning to each of the claimant’s grounds for appeal, the EAT held that the ET had not erred in its application of the law. Specifically, on the first ground, the EAT noted that the ET was right to find that the dismissal was fair because the respondent was left with little to no choice but to dismiss due to the claimant’s inability to “let go of the reins” after stepping down as CEO. 

On the third ground, the EAT decided that this was a conclusion that the ET was “entitled to reach”. 

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