Is a dismissal necessarily unfair if the decision maker does not attend the disciplinary hearing?
We look at a recent Employment Appeal Tribunal (“EAT”) decision on unfair dismissal.
Charalambous v National Bank of Greece
The Claimant was dismissed by her employer on grounds of misconduct. She had sent an email to her manager which contained highly confidential information about the bank’s customers, and copied that email to her Union representative and her lawyer. She then forwarded the email to her personal email account and to her brother. She was suspended and an investigation took place. Throughout the internal processes the Claimant dismissed the issue as a mere “mistake” due to tiredness, and campaigned for a promotion.
After an initial investigation meeting with a senior manager Mr Vathis, the Claimant was invited to a disciplinary hearing with a Mr Hood, and then a second disciplinary hearing to deal with new allegations. Mr Hood then passed the details of these hearings to Mr Vathis, probably with a recommendation about the outcome. Mr Vathis decided that the Claimant should be dismissed, and wrote to her dismissing her – he had authority to dismiss and Mr Hood did not.
The Claimant appealed and the appeal was heard by a senior manager from Athens, who rejected the appeal.
Employment tribunal decision
The Claimant raised an employment tribunal claim for unfair dismissal (as well as other claims). The tribunal was concerned that the employer’s process was “less than ideal” in several ways:
- There was a blurring of roles, with Mr Vathis involved at the initial investigation stage as well as deciding to dismiss
- The person deciding to dismiss, Mr Vathis, had not even attended the disciplinary hearings
- There was some concern over how thorough the Claimant’s internal appeal had been
The employment tribunal nevertheless considered that the dismissal was fair. Two separate managers had dealt with the process. The Claimant had had a proper opportunity to put forward her defence and mitigation, and all the evidence against her had been shared with her. The finding of guilt was reasonable in the circumstances as was the penalty of dismissal. In any case, even if the process at the dismissal stage was unfair, the appeal process was fair and “cured” any problem with the initial dismissal, so that overall the unfair dismissal claim failed.
EAT decision
The Claimant appealed to the EAT which, perhaps surprisingly given the defects identified, rejected the Claimant’s appeal. The EAT stated that while a fair process does require the employee to be able to explain themselves to the person who is deciding on dismissal, that does not always necessarily require a meeting between the two, and the explanation could potentially be provided in a report prepared by another manager who did meet the Claimant for a disciplinary hearing. The EAT also accepted the employment tribunal’s view that the internal appeal “cured” any problems with the initial dismissal decision.
This decision should be treated with caution. The EAT recognised that best practice is that the person who has to decide the outcome of the disciplinary hearing should meet and listen to the employee face to face, and that a failure to do that may very well mean, in many cases, that a dismissal is unfair. But it will not necessarily lead to that conclusion.
Comment
This is a helpful decision which shows how an employer may be able to argue that looking at a disciplinary process in the round, the employee has not been treated unfairly, even if the process has fallen short of best practice. It could, in particular, be of benefit to an employer where the disciplinary process doesn’t go entirely to plan. The decision also emphasises the important point that even if the procedure goes wrong at dismissal stage, a full, comprehensive and “fair” process at the appeal stage can “cure” and remedy any problems from the earlier part of the procedure, and turn an unfair dismissal into a fair one.
Where possible, employers should always aim for “best practice” and complying in full with the ACAS Code and Guide, to avoid giving the Claimant any scope for argument. The ACAS Code does not expressly state that the decision maker has to attend the disciplinary hearing (perhaps on the basis that this was so obvious it need not be said) and the EAT decision confirms that employers do have a degree of discretion in how they deal with disciplinary matters.
This update contains general information only and does not constitute legal or other professional advice.
Douglas Strang, Senior Associate: dst@bto.co.uk / 0141 221 8012 / Connect with Douglas on LinkedIn
