The Employment Appeal Tribunal held that the dismissal of an employee was fair, despite the fact that the manager who made the decision to dismiss did not conduct any of the disciplinary hearings himself. As a result of this finding by the EAT, the case has been reported as reflecting the position that the decision-maker in a disciplinary action does not have to meet with the employee in question before dismissing them in order for such a dismissal to be fair.
However, such a take-away is an oversimplification of the findings in this case and the headline outcome should be treated with caution. This case should not be relied on as definitive authority that a decision to dismiss will automatically be considered fair where a decision maker has not conducted or attended any disciplinary hearings before terminating.
Rather, the specific facts and findings in this case serve as a useful reminder to employers that the Tribunal will consider whether the overall disciplinary process was fair, which will include considering whether the employee had adequate opportunities to present their case and whether any appeal process undertaken managed to cure any defects in the disciplinary process.
In brief
Ms Charalambous was employed by the National Bank of Greece as a Relationship Manager in the private banking department of its London office. In January 2019, Ms Charalambous sent an email to Mr Vathis, UK Country Manager for the Respondent and copied in her trade union representative, Ms Saunders and her solicitor, Mr Johnson (who was blind copied).
Attached to this email was a spreadsheet containing a breakdown of the Respondent’s private clients, including highly confidential information such as commissions, turnover, total assets, year-end comparisons, foreign exchange transactions and total assets by currency. Ms Charalambous also forwarded this email to her personal email address and to her brother, who worked at another bank (albeit to his personal email address).
Once the Respondent was made aware of Ms Charalambous’ conduct, the following disciplinary process was undertaken:
- The Respondent held an investigatory meeting which was conducted by Mr Vathis.
- A few days after the investigatory meeting (and at Mr Vathis’ request), Ms Charalambous provided a written account of her actions. In this letter, Ms Charalambous asserted she had made an innocent mistake by sending the spreadsheet.
- Ms Charalambous was invited to a formal disciplinary hearing, which was held by Mr Hood, the Respondent’s Country Risk Manager. During this meeting, the Claimant agreed that the disclosure of confidential information to third parties without prior authority or consent constituted gross misconduct.
- Ms Charalambous was invited to a further disciplinary hearing, given that new evidence had come to light (i.e. that she had blind copied Mr Johnson into her original email and had subsequently forwarded the email to herself and her brother). During these disciplinary hearings, Ms Charalambous was provided with opportunities to put forward her arguments of mitigation.
- Following this further disciplinary hearing, the disciplinary process was passed back to Mr Vathis given that the Respondent’s Employee Handbook required any disciplinary decision to be made by a Country Manager. Mr Hood provided the notes he had taken during the formal disciplinary hearings to Mr Vathis, who proceeded to make the decision to summarily dismiss Ms Charalambous for gross misconduct.
- Ms Charalambous appealed against the decision to dismiss, asserting that dismissal was too severe of a sanction and that the true reason for dismissal was because she was a whistleblower or because of her race. Amongst other things, Ms Charalambous asserted that it was unfair that Mr Hood, who had conducted the disciplinary hearings, was not the ultimate decision maker.
- Mr Armelinios, the Respondent’s HR director travelled from Athens to conduct the appeal hearing. Ms Armelinios dismissed Ms Charalambous’ appeal on the basis that the dismissal was reasonable in the circumstances and found that her claims of whistleblowing and race discrimination were simply mere “excuses”.
Employment Tribunal & EAT decisions
Ms Charalambous made a claim against the Respondent in the Employment Tribunal asserting unfair dismissal, direct race discrimination, unlawful detriment, and automatic unfair dismissal on the ground of having made protected disclosures.
All claims were dismissed by the Employment Tribunal who held that the dismissal was fair, despite the fact that Mr Vathis did not conduct any of the disciplinary hearings himself.
The Employment Tribunal also considered the overall dismissal process undertaken by the Respondent and held that any procedural unfairness in the decision to dismiss was sufficiently addressed by the internal appeal hearing, as this was a meeting between Ms Charalambous and Mr Armelinios (who was the decision maker in the appeal process).
Ms Charalambous appealed against the Employment Tribunal’s decision and the appeal was permitted on one ground (i.e. the claim for unfair dismissal).
The EAT agreed with the conclusions made by the Employment Tribunal and found that the Employment Tribunal was correct in finding that the dismissal was fair.
In the EAT judgment there are a number of key findings:
- Ms Charalambous’ counsel had asserted that Budgen & Co v Thomas [1976] ICR 344 establishes that a dismissal will, at the very least as a starting point, be unfair if the manager making the decision to dismiss does not hear directly from the employee. However, the EAT found that whilst it was “less than ideal” for a decision maker not to conduct a disciplinary hearing, Budgen was not authority for the proposition that a dismissing officer must always have direct communication with an employee in order for a misconduct dismissal to be fair.
- The EAT concluded that the Tribunal was correct to consider the overall dismissal process. In particular, in determining whether the dismissal was fair, the EAT found that:
- Ms Charalambous had been provided with opportunities to present her case and arguments of mitigation before the Respondent and all materials and notes of the disciplinary hearings taken by Mr Hood were provided to Mr Vathis, who took them into consideration when making his decision to summarily dismiss Ms Charalambous.
- Any procedural unfairness in the disciplinary process was cured by the internal appeal hearing held by Mr Armelinios. In particular, during the appeal process, Mr Armelinios met with Ms Charalambous in person and formed his own views of the case, including reaching the conclusion that the circumstances merited summary dismissal. The EAT also held that there is no rule of law which states that a “rehearing” will be necessary to cure any earlier defects, while a mere ‘review’ will not be sufficient to do so. Rather, it does not matter whether an internal appeal is technically a rehearing or a review, but what matters is whether the disciplinary process as a whole was fair.
Key Takeways
While this case has helpfully clarified that there is no legal requirement for decision makers to conduct disciplinary hearings themselves in order for the dismissal to be fair, employers should regard the EAT’s comments that doing so is less than desirable. Additionally, the Tribunal will consider whether the overall disciplinary process was procedurally fair, which will inevitably vary from case to case and will depend on the particular steps taken by each employer. It was clear in this case that there was a fairly comprehensive process and, whilst Mr Vathis and Mr Hood had blurred the lines between investigation meetings and disciplinary hearings, the matters had been investigated and the employee given the opportunity to put forward her position prior to dismissal.
This case is also helpful guidance that employers do not necessarily have to conduct rehearings during the appeal process in order to cure any defects that may have occurred in the disciplinary process. Rather, a review where the appeal is heard in front of the appeal manager may be sufficient (depending on the level of investigation carried out by the appeal manager and whether the appeal manager is able to form an independent view on the decision to dismiss).
