Can an employee be fairly dismissed in the absence of a dismissal meeting?
In a recent data breach case, we consider if an employee can be fairly dismissed in the absence of a dismissal meeting?
This was considered by the Employment Appeal Tribunal (EAT) in the case of Ms Charalambous v National Bank of Greece.
Ms. Charalambous (the Claimant), was employed by the National Bank of Greece (the Bank) as a relationship manager. During her employment she raised a number of concerns including her dissatisfaction with certain aspects of the Respondent’s employment practices and the making of two protected disclosures by the Claimant, on one in 2017 relating to a suspicious transaction and another in 2019 relating to alleged breaches of the Financial Conduct Authority (FCA) rules.
The incident that led to the Claimant’s dismissal occurred in January 2019. The Claimant sent an email to the Bank’s London office manager requesting a promotion and pay rise. The Claimant attached a spreadsheet to this email which included details of commissions, turnover, total assets, year-end comparisons, foreign exchange transactions and total assets by currency. The email was copied to her trade union representative, and she blind copied her solicitor. The following day, she forwarded the email and attachment to her personal email address and her brother, who worked at another bank. The Claimant also forwarded it to the Human Resources contact, and copied in her union representative.
The Claimant was suspended pending a disciplinary investigation into the confidential client data breach and alerted the FCA. As that time the Bank were not aware that the Claimant had sent the email to her private email address or sent it to her brother.
At the investigation meeting, which was held by Mr Vathis, the Claimant did not disclose the fact that she had sent the email to her brother, she stated that she had only sent it to her union representative. The Claimant was asked to provide a written account of her actions. The Claimant explained that sending the spreadsheet had been an innocent mistake and that she had been busy and under pressure. In both the investigation meeting and the written document, she reiterated her request for a promotion.
The Bank invited her to a disciplinary meeting. The employment tribunal held that this meeting although described as a disciplinary meeting it was another investigation meeting. This meeting was held by Mr Hood.
Following this meeting the Claimant was invited to a further disciplinary meeting again with Mr Hood. She was advised that new evidence had come to light namely that her solicitor had been blind copied and then she had forwarded the email to her personal email address and to her brother.
Mr Hood forwarded all the notes of the meeting to Mr Vathis. Mr Vathis then took the decision to summarily dismiss the Claimant. Mr Vathis considered the Claimant’s disclosure of confidential information to third parties amounted to gross misconduct. This Claimant appealed the decision to dismiss but this was not upheld.
The Claimant submitted a claim in the employment tribunal alleging unfair dismissal and detriment on whistleblowing grounds, and race discrimination. The tribunal dismissed all the claims. The reason for dismissal was her gross misconduct, not whistleblowing or race.
The Employment Appeal Tribunal
The Claimant appealed to the EAT which allowed only part of her appeal on procedural fairness of the dismissal to proceed.
The Claimant submitted that the ET fell into error when it found that the dismissal was fair notwithstanding that Mr Vathis, the decision maker did not conduct the disciplinary hearing.
The EAT dismissed the appeal.
The EAT recognised that having such a meeting is desirable, it being good practice and something which many employers' disciplinary procedures will expressly require. However, it was not a strict rule of law. The underlying point of fairness is that the employee has the opportunity to put their case and explain themselves.
Notwithstanding this decision, our advice is that a meeting is held with the decision maker and in the absence of a meeting a dismissal could be deemed unfair. We would recommend that in any disciplinary case the ACAS code is followed as a minimum to avoid any arguments that a dismissal is deemed unfair because of procedural unfairness.
For guidance on any aspects regarding the dismissal process, please speak to our expert employment law solicitors.