A reminder on fair procedure in dismissal cases

In this blog, we revisit some basics of a fair procedure in dismissal cases, and consider how they were applied in the recent Employment Appeal Tribunal (EAT) case of Charalambous v National Bank of Greece [2023] EAT 75.

Fair procedure fundamentals

Employers should have a policy that outlines the process to follow in a disciplinary or grievance procedure. That policy should, as a minimum, line up with the standards in the ACAS Code of Practice.

The details of the procedure to be followed will depend on the facts of the case. However, at a basic level, a fair procedure should usually allow for the following:  

• Dealing with the issues promptly, avoiding unnecessary delay,
• a fair investigation, undertaken by an impartial person: the individuals investigating and then deciding on the outcome should usually be different,
• ensure that the individual knows the case against them and has a fair opportunity to respond (and in dismissal cases this should include that they are at risk of dismissal),
• make appropriate reasonable adjustments if an employee is disabled (for more on conducting a disciplinary investigation with neurodiverse employees please see our previous blog here), and
• allow the employee to appeal to an appropriate individual.
  
  

Charalambous v National Bank of Greece [2023] EAT 75

In disciplinary cases, it is standard practice for an employer to hold a disciplinary hearing with the employee as part of the type of process envisaged above, before taking any decision to dismiss. Will a dismissal always be unfair if the employer fails to do that?

No, according to the EAT in the recent case of Charalambous.  

To give a brief outline of the facts:

• Ms Charalambous (the Claimant) worked at the Respondent Bank. The Claimant was suspended following a serious data breach where she sent sensitive customer information to her trade union representative, solicitor, brother and her personal email address.
• Mr Vathis of the Respondent conducted some initial investigation before handing his findings to Mr Hood (also of the Respondent). Mr Hood and the Claimant held two “disciplinary hearings”, but the Tribunal found these were, in reality, further investigation meetings. The notes of the meetings were sent back to Mr Vathis who dismissed the Claimant without conducting a disciplinary hearing.
• When the Claimant appealed, a senior manager conducted an appeal hearing and was provided with copious documents. The appeal was rejected.
• Subsequently, the Claimant sued claiming unfair dismissal based, among other things, on the allegedly unfair process.
  
  

The Tribunal rejected the claim. Although it noted the process was far from perfect given the blurred distinction between disciplinary processes and the manner in which the decision to dismiss was taken, the decision was fair taken as a whole. The Claimant subsequently appealed to the EAT.

The EAT rejected the Claimant’s appeal for two main reasons:

1. The case law did not establish that the employee always had to meet with the dismissing manager, provided they had some opportunity to explain themselves. While a meeting with the dismissing manager was noted as best practice, it will not always be necessary in every situation, where the dismissing officer has a full report including any potentially mitigating factors. In this case, the dismissing officer was provided with notes of two meetings where the Claimant had the opportunity to set out her case.
2. While the process was imperfect, such imperfections were remedied by the appeal process. Following a meeting with the Claimant, the appointed appeal officer, who was independent, came to his own conclusion that dismissal was appropriate.
   
   

Comment

Employers should not take this case as an invitation to avoid conducting disciplinary hearings. This decision was taken on the particular facts of this case. As the EAT itself noted:

“… it is desirable that such a meeting between the employee and the dismissing officer should take place. It is good practice and something which many employers’ disciplinary procedures will expressly require”

What the case does do is underline the holistic way in which tribunals typically examine whether a fair process was carried out. It is certainly unconventional and undesirable that the Claimant didn’t have a separate disciplinary hearing. However, when looking at the process in the round, the core building blocks of a fair process (as set out above) were largely intact. Notably, the Claimant still had the opportunity to state her case.

In a similar vein, the case also demonstrates the benefits of carrying out a thorough appeals process. If the original process was defective in some way, there is still an opportunity to remedy those defects at the appeal stage to some extent.

For further information about anything covered in this blog please contact Hugh Young or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, August 2023