It is well established that when considering the test of fairness in respect of a disciplinary procedure, the employment tribunal is given a wide discretion. Often this leaves the tribunal with the task of determining whether a disciplinary procedure, though imperfect, is still fair for the purposes of an unfair dismissal claim. Such was the case in the recent EAT decision of Charalambous v National Bank of Greece.
In this case, the employee appealed against the tribunal’s decision in finding that her claim for unfair dismissal was fair.
By way of background, she had been employed by the respondent in London since 2014. Throughout her employment she had raised a number of complaints and blown the whistle on two occasions. In early 2019 she sought both a promotion and pay rise and emailed the London office manager with this request. Attached to this email was a spreadsheet naming private clients and listing details relating to turnover, commission and total assets among other things. Said email was copied to her trade union representative and blind copied to her solicitor, it was also forwarded to her personal email address as well as her brother who worked at a competing bank and the HR department.
The employee was later asked to attend Mr Vathis, her manager’s, office. He asked if she was aware that she had sent her union representative confidential information to which she responded claiming not to have realised that she had done this, only doing so due to tiredness. She was suspended pending a disciplinary investigation.
Mr Vathis held a disciplinary meeting with the employee, and, at this stage, the employer was only aware of the internal emails and not the later email to her personal account or to her brother. When asked if she had sent the details to anyone else, she denied doing so.
The employee proceeded to draft a written account of the event in which she also did not alert her employer to the additional email. She asserted that she was tired and under pressure when the incident took place and that it was an innocent mistake.
She was later invited for a further disciplinary meeting with a different manager, Mr Hood – this meeting was interpreted by the tribunal to reflect a further investigation meeting. At no point during this meeting did the employee disclose that she had sent the email to anyone else outwith the organisation.
Upon further investigation into her emails, the bank discovered the additional recipients (outwith the bank) and invited her to another meeting with Mr Hood. At this meeting, the employee confirmed that she had sent the attachment to both her solicitor and her brother but declared doing so to be an accident.
Mr Hood proceeded to pass his notes back to Mr Vathis who then dismissed the employee (without meeting her). Her appeal to dismissal was also rejected.
The employee sought to rely upon the case of Budgen & Co v Thomas, which she claimed was authority establishing that if the dismissing manager did not meet with the employee prior to making a decision to dismiss then the dismissal was unfair.
The EAT rejected this argument, instead finding that the tribunal must consider the entirety of the procedure used by the respondent when establishing fairness. Although they noted that the procedure followed here was “less than ideal”, they highlighted that if the employee is given a clear opportunity to present their case and explain their position, then the procedure is in keeping with the principle of fairness.
Overall, this decision once again highlights that “fairness” is a broad term. Although it is certainly advisable that a meeting take place between the dismissing manager and the employee, a failure to do so will not automatically render the dismissal unfair. The key component in establishing fairness is to ensure that the employee is given the opportunity to make their case.
In short – less than ideal does not equal unfair.
Click here to read the Judgment: https://rb.gy/u1lj0