If an employer has concerns with an employee's conduct or capability, it is likely that the employer will have to initiate disciplinary proceedings. These can be difficult to navigate, particularly when there are sensitive issues at play. Employers will also be concerned to ensure that they follow a fair procedure, so as to avoid claims of unfair dismissal in the future from ex-employees. There is a significant amount of guidance, including a Code of Practice and Guidance produced by ACAS, to assist employers in following a fair process, as well as case law. A recent case concluded in the Employment Appeal Tribunal (EAT) has now given some further guidance, particularly in relation to the proximity of the individuals carrying out the dismissal itself.
In the recent case of Charalambous v National Bank of Greece, the EAT decided that a dismissing manager did not have to meet with an employee before deciding to dismiss them. Whilst this seems to suggest that it is never necessary for a manager carrying out a dismissal to actually meet the employee that is being dismissed, it is important to note that this decision was made on the particular facts of that case. It does not lay down a legal principle that a dismissal is always fair, even if the manager carrying out the dismissal does not meet the employee throughout the investigation and disciplinary process.
Facts of the case
The Claimant in the case was dismissed for gross misconduct over a data breach. She had sent emails containing confidential information to various parties, including her solicitor, and her brother, who actually worked for a competitor company. The unauthorised disclosure of personal customer data was so significant that it had to be reported to the Financial Conduct Authority. The initial investigation into the breach was carried out by a gentleman named Mr Vathis, however, another manager, Mr Hood, took over the investigation. He met with the Claimant on two separate occasions to discuss the allegations. Whilst Mr Hood had taken over the substance of the investigation from Mr Vathis, it was Mr Vathis who made the ultimate decision to dismiss the Claimant and was responsible for carrying out the dismissal itself. The Claimant appealed the dismissal and attended an appeal meeting, but the decision was upheld.
The EAT found in favour of the employer, and concluded that the employer's decision to dismiss the Claimant was within the range of reasonable responses that were open to them. The EAT did note that a fair disciplinary process would usually involve one manager carrying out an investigation, before a separate disciplinary hearing is conducted by a separate individual. The EAT said that it would be best practice for the employee to meet with the decision-maker. However, the EAT recognised that the Claimant did have two meetings with Mr Hood, accompanied by her trade union representative, and had the opportunity to fully discuss the allegations made against her. The EAT also recognised that the Claimant had appealed the decision and had actually attended an appeal hearing. Mr Vathis had the written record of all of these meetings.
Takeaways for employers
Whilst there is clearly a broad range of reasonable responses to proven misconduct available to employers, the EAT did confirm in this case that disciplinary processes should fully comply with the ACAS code of practice on disciplinary and grievance procedure. This applies to all employers undertaking such processes. They also noted that it was desirable for a meeting to take place before a decision to dismiss was taken, but that in this case, this was not fatal to the employer's case, given that they had otherwise undertaken and carried out a very fair process.
Employers should ensure they are familiar with the ACAS Code of Practice on disciplinary procedures in light of this decision. The separate Guidance includes the following sections: understanding the options available, following a fair procedure, carrying out an investigation, the disciplinary hearing itself, deciding on the disciplinary outcome and what to do after the disciplinary procedure has been concluded.
In relation to the disciplinary hearing itself, the ACAS Code reminds employers of the need to outline in writing to the employee in advance of the meeting: the alleged misconduct or performance issue, the evidence they have, the date, time and location of the hearing and information on the employee's right to be accompanied to the hearing. In the hearing, the employee should be given the chance to set out their case, ask questions, show evidence and respond to information given by witnesses.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
