Mr G Moore v Phoenix Product Development Limited — 2019

Mr G Moore was the founder and former chief executive of Phoenix Product Development Limited. After he stepped down as CEO in 2017, relations with the board deteriorated and the company terminated his employment on 22 May 2018 on 6 months' contractual notice. The only claim adjudicated was unfair dismissal. The tribunal held that the dismissal was fair and dismissed the complaint.

The tribunal found that the principal reason for dismissal was a mixture of conduct and some other substantial reason, with strong conduct elements. It relied in particular on the conversation with a potential investor in South Africa, the post-off-site exchanges showing continued resistance to the new CEO's authority, and the email sent to Dave Mosscrop about the McDonald's toilet issue, which the tribunal described as a disrespectful message circulated too widely. It also noted concerns about the claimant's approach to company accreditations and his continuing refusal to let go of control despite his reduced shareholding.

On procedure, the tribunal accepted that the dismissal letter did not offer an appeal, which it described as a serious omission, but held that this did not make the dismissal unfair in the circumstances. It took into account the ACAS Code and section 98(4) ERA 1996, and concluded that this was an exceptional case in which a further appeal stage would likely have been futile and would have prolonged an already difficult situation. The tribunal also found that trust and confidence had broken down irreparably and that the board had not pre-decided the outcome, pointing to the pushback from non-executive directors Richard Smith and David Phillips before the final decision.

The tribunal recorded that the claimant had raised complaints about Dylan Jones, but said those complaints were not advanced as a protected disclosure claim under sections 47B or 103A ERA 1996. In the alternative analysis, if dismissal had been unfair, the tribunal said the compensatory award would have been nil under Polkey and the basic award would also have been nil because it would have found 100% contributory conduct.