Can a dismissal be fair despite the decision maker not conducting the disciplinary hearing?
Yes, the Employment Appeal Tribunal (EAT) held in Ms Despina Charalambous v National Bank of Greece [2023].
Facts
Ms Charalambous (Ms C) was employed by the National Bank of Greece (the Bank) from May 2014 as a relationship manager in the private banking department of the London office.
The incident which led to Ms C’s dismissal occurred on 23rd January 2019. Ms C sent an email, which attached a spreadsheet with a breakdown of all private clients of the bank, to several individuals. The information contained within the email was evidently highly confidential.
Two of the recipients of the email were not employees of the Bank, namely Ms C’s solicitor and her trade union representative. The Bank were aware that Ms C had sent the email to her trade union representative but were not aware that she had sent the email to her solicitor. This is because the solicitor had been ‘blind copied’.
The Bank were also unaware at the time that Ms C had sent the same email to her brother and her personal email address. Ms C did not disclose any of this information.
As a result of Ms C sending a highly confidential email to a recipient outside the Bank, Ms C was suspended by the Bank pending an investigation. At an investigation meeting at the end of January, she again failed to disclose who she had sent the email to, despite being asked at the investigation meeting if she had sent the email to anyone else.
At a disciplinary hearing on 12th February 2019, Ms C’s explanation for her actions was that she was tired. However, again Ms C failed to disclose that she had sent the email to her solicitor or to her brother. A further disciplinary hearing was held on 22nd February 2019, after it had come to light that she had also sent the email to her solicitor and brother. Both hearings were conducted by Mr Hood.
Mr Hood then sent all information from the hearings to Mr Vathis. Mr Vathis did not attend either of the disciplinary hearings. Mr Vathis took the decision to summarily dismiss Ms C and did so by letter, dated 4th March 2019. He considered that the disclosure of confidential information to third parties amounted to gross misconduct.
Ms C appealed against the decision. Her grounds of appeal included the fact that Mr Vathis had not conducted the disciplinary hearings but had made the decision to dismiss. This appeal was held by the Bank’s HR Director. He dismissed the appeal. Ms C brought a number of claims against the Bank. All heads of claim were dismissed, however an appeal was permitted on one ground: on the fairness of the decision to dismiss.
Law
Part 10 of the Employment Rights Act 1996 (ERA) provides statutory protection to qualifying employees against unfair dismissal by the employer. The ERA sets out five potentially fair reasons for dismissal, these are: capability or qualifications; conduct; redundancy; breach of a statutory duty or restriction; and “some other substantial reason”. As well as relying on one of the potentially fair reasons, an employer must also show that they acted reasonably in treating that reason as sufficient to justify dismissal.
When considering this, a Tribunal has to assess whether the employer has:
- A genuine belief that the employee was guilty of misconduct;
- Reasonable grounds for that belief; and
- At the time it held that belief, it had carried out as much investigation as was reasonable.
The Tribunal then has to consider whether the decision to dismiss fell within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted.
Decision
The EAT dismissed the appeal and held that the Employment Tribunal had not erred in law when it found that the dismissal was fair despite the manager who took the decision to dismiss not conducting the disciplinary hearings himself.
It was acknowledged that the ‘process was less than ideal’, but that overall, it was not unfair.
The EAT commented that the procedure adopted must be looked at as a whole and any procedural unfairness in the initial decision to dismiss was capable of being corrected by the internal appeal process. The internal appeal process had therefore remedied the ‘imperfections’ from the first stage of the process.
Comment
Seán McEntee, Solicitor in our Employment team comments:
“Although the dismissal process was overall held to be fair despite the decision maker not holding the disciplinary hearings, we would always recommend to our clients that the decision maker should be the person conducting the disciplinary hearing.
“This is a case that reaffirms the importance of offering the right of appeal to employees after a dismissal and following a fair appeal process. The EAT, concurring with the Employment Tribunal, was clear that procedural mistakes from the dismissal process can potentially be sufficiently rectified at the appeal stage to result in the dismissal being found to be fair.
“All is therefore not lost if a mistake is made in the initial decision to dismiss, if it is corrected by a robust appeal process.”
