How can we help?


Can a dismissal be fair without an appeal hearing? 

Employees with two year’s continuous service have the right not to be unfairly  dismissed (and no length of services is required in cases of ‘automatically unfair’ dismissals). But can a dismissal be deemed fair with an appeal hearing?

The law on unfair dismissal 

To avoid a tribunal finding of unfair dismissal the employer must show three things: 

  • A potentially fair reason to dismiss; 
  • That a fair procedure was followed; 
  • That the dismissal was fair in all the circumstances of the case. 

Many employees are now aware of the importance of following this second requirement – the fair procedure – and will offer the employee the right to appeal.  

In the vast majority of cases this will certainly be the right course of action to take. In the case of Moore v Phoenix Product Development Limited the Employment Appeal Tribunal (EAT) ruled that the dismissal was fair without an appeal hearing. However, the EAT decision should not be taken as a green light to dispel with appeal hearings. The facts in Moore will not fit with most dismissals. 

Moore V Phoenix Product Development Ltd 

The claimant was an inventor who stepped down as CEO of the Respondent company. ?He stayed on as director and employee but was unable to accept that he no longer led the Company.  

Working relations broke down irretrievably and he was dismissed under the category of ‘some other substantial reason’. He was not offered a right to appeal his dismissal as the respondent believed the appeal would be futile. Mr Moore lodged an unfair dismissal claim. He lost.    

Both the tribunal and the EAT agreed with the respondents that an appeal would have been futile. The respondent was able to show evidence of the claimant’s foul and abusive emails, his confrontational behaviour and that he was entirely responsible for the breakdown in relationships.   

Employees with two year’s continuous service have the right not to be unfairly  dismissed.

What should employers do now?  

The safest course of action is to continue to offer employees the right of appeal. Appoint someone of appropriate seniority to hear the appeal who has not previously been involved in the disciplinary hearing.  Make sure the appeal chair explains in writing their reasons for dismissing the appeal if that is their decision.  

If you are sure the Claimant’s behaviour falls into the category of Mr Moore’s making an appeal futile, make sure you have documentary evidence of the unreasonable conduct to justify not offering an appeal.  

Also be aware that even if a tribunal finds that the dismissal was substantively fair it may still impose  financial penalties on an employer who fails to follow a fair procedure. This could be awarding the claimant for loss of earnings to cover the time (typically a few weeks) it would have taken to have arranged and heard the appeal. Or impose a percentage uplift (up to 25%) on any loss of earning compensation for failure to follow the ACAS Code of Practice on Disciplinary and Grievances.   

Finally, employers could consider if they should make more use of some substantial other reason (SOSR) as a fair reason for dismissal,  where the circumstances warrant it.  

SOSR is one of the potentially fair reasons for dismissal which is often underused by employers because they are less familiar with it than conduct and capability dismissals. SOSR can be used as a stand-alone reason or as  alternative to use in conjunction with conduct and capability dismissals.  

For legal advice on dismissal and redundancies contact our employment lawyers.  

About this article

This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

About this article

Read, listen and watch our latest insights

  • 05 March 2024
  • Privacy and Data Protection

How do I protect my business in the event of a personal data breach?

Don’t let your business fall victim to personal data breaches. Join Louise Keenan and Rebecca Dowle, for a quick overview of how to protect your business.

  • 05 March 2024
  • Privacy and Data Protection

AI Podcast: AI and Intellectual Property

In the second of our three-part ‘AI Podcast’ series, Jacob Montague and Lucy Densham Brown, will be exploring how artificial intelligence (AI) interacts with intellectual property rights (IP rights).

  • 04 March 2024
  • Corporate and M&A

Treasury Shares – An Opportunity to be Treasured

Under section 658 of the Companies Act 2006 (‘CA 2006’), there is a general rule against companies acquiring and owning their own shares.

  • 28 February 2024
  • Commercial Real Estate

Hidden risks in serviced office agreements

This is usually a fully furnished and equipped office space that is managed by a facility management company and made available for short-term or long-term rentals to businesses, varying from one week to a year, or even longer.

  • 27 February 2024
  • Employment

Changing Attitudes to Menopause

We have set out some answers to the frequently asked questions that employers ask when considering how to support a menopausal employee.

  • 22 February 2024
  • Employment

Time to take the heat off menopausal women

On 22 February 2024, the EHRC released guidance and resources for employers designed to help employers understand their legal obligations in relation to supporting workers experiencing menopausal symptoms.