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Mark Ridley

Mark Ridley

Partner - Employment

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Where an employee has 2 years continuous employment, they can claim unfair dismissal in the event that they are dismissed.

The onus will be on the employer to show that a dismissal was for one of the fair reasons.

Conduct and capability are two of those fair reasons.

The ACAS Code of Practice sets out the minimum fair procedure.

Employers will usually also have their own internal procedures for dealing with disciplinary or capability issues.

The ACAS code provides that when dealing with conduct or capability issues there should always be an appeal available to the employee in relation to any disciplinary sanction, capability warning, or dismissal. 

Invariably, an employer’s internal procedure will provide for an appeal also.

Accordingly, employers are well advised to always offer a right of appeal in such circumstances.

However, in a recent case determined by the Employment Appeal Tribunal is was decided that an appeal will not always be absolutely necessary for a dismissal to be fair.

The case concerned a Claimant who was an inventor and founder of a company which manufactured and marketed his invention. The Claimant was the Chief Executive Officer of the Respondent company for many years, until he was replaced in 2017. The Employment Appeal Tribunal found that the Claimant had difficulty accepting that the Respondent was no longer his company and that he was no longer in charge of it, even though he remained an employee and a director.

Despite having met with the new CEO and agreeing to make things work, the Employment Appeal Tribunal found that the Claimant remained combative, sending aggressive emails containing foul and abusive language. His attitude at board meetings was confrontational. Following a series of incidents, the remaining members of the board lost confidence in the Claimant’s ability to change his ways, and he was dismissed without being offered a right of appeal. The Claimant claimed that the dismissal was both procedurally and substantively unfair. The original Employment Tribunal rejected the claim, finding that the Claimant had been dismissed for the fair reason of “some other substantial reason” as there had been an irreparable breakdown in relations. The Claimant appealed.

The Employment Appeal Tribunal held that the original Employment Tribunal was entitled to conclude, in the specific circumstances of the case, that an appeal would have been futile. The Employment Appeal Tribunal commented that an appeal will “normally” be part of a fair procedure. However, it will not invariably be so. In particular, all the circumstances should be taken into account, and the fact that the appeal would have been futile was one such relevant circumstances.

All that having been said, this is a case which was very much decided on its own specific facts. If an employer chooses not to offer an appeal, it is likely to have an uphill battle showing that an appeal would have been futile such that the dismissal could still be fair. Except in the most extreme of cases.

As such, an appeal should usually be offered, and legal advice should be taken before deciding not to offer an appeal for the reasons cited in this recent Employment Appeal Tribunal case.

This is not legal advice; it is intended to provide information of general interest about current legal issues.