Can a dismissal be fair when there has been no hearing in front of the decision maker?

In the recent case of Charalambous v National Bank of Greece [2023] EAT 75, the Employment Appeal Tribunal (EAT) considered whether it was necessary for the dismissing manager to conduct a disciplinary hearing with the individual prior to dismissing.

Brief facts about the case

The claimant worked in the respondent’s London office as a relationship manager in the private banking department. In the course of seeking a promotion, the claimant had emailed confidential information regarding the respondent’s clients to a number of internal contacts and her trade union representative.

Upon uncovering this, a disciplinary investigation took place, and thereafter a disciplinary hearing with the respondent’s country risk manager was convened. Before a decision was made, it was then discovered that the claimant had blind copied her solicitor and her brother (who worked for another bank) into the relevant email, as well as sending it to her personal email address.

Accordingly, the claimant was invited to a further disciplinary hearing with the respondent’s country risk manager in respect of this additional disclosure.

However, the country risk manager did not make the disciplinary decision. Instead, notes and a recommendation were passed to the respondent’s country manager. The country manager made the decision to dismiss the claimant, on the basis of the claimant’s deliberate disclosure of confidential information.

The claimant appealed the decision, alleging that the sanction was too harsh, that it was a pretext to force her exit, and that the true reason for the dismissal was due to previous protected disclosures or because of her race. The claimant also highlighted that the country risk manager, who had held the disciplinary hearings, did not make the decision to dismiss, and argued that this was unfair. However, the claimant’s appeal was rejected, and the decision upheld.

Decision in the Employment Tribunal

The claimant brought claims for unfair dismissal, automatically unfair dismissal due to having made a protected disclosure and race discrimination. The employment tribunal dismissed each of the claimant’s claims.

The employment tribunal, in their written reasons, confirmed that they found the principal reason for the dismissal was the act of gross misconduct, namely the data breach. The employment tribunal found that the respondent had a reasonable belief that the claimant had committed the act and that the grounds for that belief were reasonable. It also found that the respondent’s investigation had been reasonable. In considering the procedure, the employment tribunal found that the two disciplinary hearings held by the country risk manager were in fact more akin to investigation meetings. It was also noted that the country manager had carried out the initial investigation meeting with the claimant, subsequently stepping back to allow the country risk manager to take this over. The employment tribunal took account of Acas Code of Practice which states that, where practicable, different people should carry out the investigation and disciplinary hearing. They noted that, ideally, distinct managers would undertake each stage and that ordinarily the decision maker would be present at the disciplinary hearing. It was noted that the procedures applied by the respondent in respect of investigation and disciplinary were less than ideal. In respect of the appeal, the employment tribunal found that the HR director was independent and was the decision maker, though they noted that more could have been done in terms of investigation.

However, despite the concerns about the procedure followed, ultimately the employment tribunal found that taking the investigation, disciplinary and appeal process as a whole, it fell within the band of reasonable responses.

Appeal

The claimant appealed the employment tribunal’s decision, arguing that it erred when it found the dismissal fair, given that the country manager did not conduct the disciplinary hearing but made the decision to dismiss.

The EAT dismissed the claimant’s appeal and rejected a submission that a decision maker must themselves have personal communication with an individual otherwise a dismissal would be unfair. The EAT confirmed it was, of course, desirable that such a meeting take place between the dismissing officer and employee, and that it is good practice to do so. However, the absence of this meeting would not in itself render a dismissal unfair. It was noted that in this particular case, a full report was provided to the dismissing officer, which included mitigating factors, and that the claimant had multiple meetings and was able to put forward any points that they wished.

The EAT also found that the employment tribunal was entitled to conclude that the respondent’s actions were reasonable in all the circumstances, notwithstanding the procedure being “less than ideal”. The EAT noted that an appeal hearing took place where the appeal officer met with the claimant; the appeal officer was more senior to the dismissing officer and he came to his own independent view of the case including that it merited dismissal. The EAT concluded there was no error of law in the employment tribunal’s conclusion that the appeal process was sufficient to correct any imperfections in the dismissal.

Learning points

As with most cases, this decision turns on its own facts. It is a good reminder that the process in the round will be considered when determining the fairness of a dismissal. However, employers should be cautious in following a “less than ideal” procedure.

Taking account of all of the facts and circumstances here, the dismissal and procedure were found to be within the band of reasonable responses. While the EAT ultimately upheld the employment tribunal’s decision that this dismissal was fair, it was noted that on different facts, the absence of the disciplining manager being present at a disciplinary hearing could certainly render a dismissal unfair. As such, the safest way to dismiss, even in circumstances where a serious act of gross misconduct has occurred, remains the application a full and comprehensive disciplinary process taking account of the Acas Code of Practice and an employer’s own disciplinary procedures.

For advice on best practice in carrying out a disciplinary procedure, please contact one of our employment team.