The statutory Acas Code of Practice on Disciplinary and Grievance Procedures requires employers to offer employees a right of appeal for misconduct or poor performance dismissals; a failure to do so will render the dismissal unfair in addition to potentially increasing the compensation awarded. The fact that the Code expressly does not apply to redundancy, and has been found by case law not to apply to dismissals for some other substantial reason (“SOSR”), has lead to uncertainty as to whether employers need to offer an appeal for those types of dismissals to be fair. Two recent cases have made clear that a lack of appeal will not always render such dismissals unfair, but this is likely to be the exception rather than the rule and it will depend on the individual facts of the case.
In Moore v Phoenix Product Development the employee, an executive director and founder of the employer company, had caused an irreparable breakdown in trust and confidence, for which he was unrepentant even after the dismissal decision. On the facts, there was no potential for retraining or finding others who could work with him. Given there was no scope for rebuilding trust and confidence, an appeal would have been futile and therefore the EAT concluded that it was within the band of reasonable responses to dismiss and not offer an appeal. The EAT confirmed that an appeal will normally be part of a fair procedure for a SOSR dismissal, but not invariably so. The case is similar to that of Gallacher last year (see here), where the lack of appeal was not unfair, given the relationship between two senior managers had irretrievably broken down and the claimant had made clear she had no interest in trying to resolve matters. It will clearly be helpful for employers to have evidence showing that the employee has no interest in repairing the relationship. If there is persuasive evidence that a further appeal meeting would be truly pointless, a failure to offer an appeal may not render the dismissal unfair.
In relation to redundancy dismissals, the Court of Appeal in Gwynedd Council v Barratt has confirmed that the absence of an opportunity to appeal does not of itself make a redundancy dismissal unfair. Absence of an appeal is one of many factors to be considered in determining fairness, including whether the individuals were given a proper opportunity to be consulted or to make a grievance about the process. The Court stated that “if the original selection for redundancy was in accordance with a fair procedure, the absence of an appeal is not fatal to the employer’s defence. … it would be wrong to find a dismissal unfair only because of the failure to provide the employee with an appeal hearing”. However, on the facts of the case, the denial of the employees’ statutory and contractual rights to appeal together with a lack of consultation over the redundancy process rendered the dismissals unfair.