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An Appeal to Fairness?

Posted on 7th September, 2021

In order for a dismissal to be fair an employer has to show that the reason for the dismissal was one of the four potentially fair reasons set out in section 98 of the Employment Rights Act 1996 “the Act” i.e. conduct, capability, redundancy or some other substantial reason and that a fair procedure was followed. A fair procedure is set out in section 98(4) of the Act and

(a) “Depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) Shall be determined in accordance with equity and the substantial merits of the case.”

It is well established that an appeal is normally part of a fair procedure. As described by Lord Justice Bean in Gwynedd Council v Barratt (discussed below) “the right to appeal any dismissal is now so ingrained in employment practices that it is rare than an employee would be dismissed without being given the right of appeal. Such a right has become virtually second nature for all but the most cavalier employer.”

In two recent cases the absence of an appeal procedure did not make dismissals unfair.

In Moore v Phoenix Developments Limited, Mr Moore the former CEO and founder of Phoenix Developments stepped down from his position as CEO but remained a director and employee of the company. Relations between the parties became strained when it became clear that Mr Moore was having difficulty accepting that he was no longer in charge of the company. It led to an irretrievable breakdown in the relationship between employer and employee and Mr Moore was dismissed for “some other substantial reason”. He was not offered a right of appeal. Mr Moore brought a claim for unfair dismissal, one of the grounds being that he was not offered a right of appeal.

The Employment Tribunal decided that because of Mr Moore’s aggressive and confrontational behaviour in the meeting during which he was dismissed, an appeal would have been futile and therefore the absence of an appeal did not render the dismissal unfair. The Employment Appeal Tribunal agreed with the Employment Tribunal stating that whilst an appeal is normally part of a fair procedure; that is not necessarily always the case depending upon the circumstances of the case. In this case, the company was a small organisation and relations had broken down irretrievably and the Claimant held a senior role and was unrepentant. The dismissal was therefore held to be fair even though the employee was not offered a right of appeal.

In, Gwynedd Council v Barratt & Others, a school (Ysgol y Gader) was closed down (along with nine other primary schools) and a new school (Ysgol Bro Idris) re-opened on the same site. The two Claimants were PE teachers who had not been consulted about the old school’s closure. They applied for roles at the new school but were unsuccessful. Their employment terminated by reason of redundancy and they were not offered a right of appeal.

The Employer submitted that because of the closure of the school, an appeal would not have made any difference.

The Employment Tribunal held that their dismissals were unfair and outside of the band of reasonable responses open to an employer given the size of the Council and the wealth of administrative resources at its disposal. The Employment Judge did not accept that their redundancy was inevitable as they could well have been appointed to new roles at the new school.

The Council appealed to the Employment Appeal Tribunal (who dismissed the appeal) and subsequently to the Court of Appeal. The Court of Appeal held that in redundancy cases, “the absence of any appeal procedure does not of itself make the dismissal unfair” and so “if the selection for redundancy was in accordance with a fair procedure the absence of an appeal is not fatal to the employer’s defence.” The Council’s appeal was dismissed and the finding of unfair dismissal was upheld.


appealHere, we have two cases about the absence of an appeal process. In Mr Moore’s case his dismissal was fair but in Ms  Barratt’s case her dismissal was unfair. What can we take from this? Firstly that generally speaking, in all but the most exceptional cases, employers should have an appeal mechanism built into their dismissal policies and procedures. Secondly, there are some exceptional cases where not holding an appeal will not be fatal to an employer’s defence that the dismissal was fair. Thirdly, each case turns on its own facts. The size and administrative resources of Gwynedd Council are significantly greater than those of Phoenix Developments Limited. There is a greater expectation on larger organisations (and especially public bodies) to have more detailed and thorough procedures. Had Mr Moore worked for Gwynedd Council then the Tribunal may well have decided his case differently. The appeal meeting may well not have been futile as it could have been held by individuals not emotionally invested in the outcome and Mr Moore’s behaviour at such a meeting may well have been less aggressive and confrontational.

If you require advice and assistance regarding appeal procedures or unfair dismissal cases generally, please contact me on or 0191 814 9699.

Sally Lomas-Fletcher, Associate Solicitor, Employment Law


Case citations.
Moore v Phoenix Development Limited UKEAT/0070/20
Gwynedd Council v Barratt & Others 2021 EWCA Civ 1322

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