Although it is good practice for an employer or manager to meet directly with an employee before terminating their employment, the Employment Appeal Tribunal (EAT) held in Charalambous v National Bank of Greece that even if they fail to do so, the dismissal will not necessarily be unfair.
Basic facts
Ms Charalambous started working in the private banking department of the company’s London office in 2014. In 2017 and 2019, she made two protected disclosures in which her trade union representative Mr Saunders and her solicitor, Mr Johnson, were involved.
In early 2019, Ms Charalambous sent an email to her manager, Mr Vathis, asking for a promotion and a salary increase. Attached to the message was a spreadsheet containing highly confidential information about the financial affairs of all private clients. She copied the email to a number of other senior managers as well as Mr Saunders and blind copied Mr Johnson into it. The following day she forwarded the email to her own personal email account as well as that of her brother (who worked for a different bank). Shortly afterwards, she sent the email to the bank’s HR manager, again copying in Mr Saunders.
She was then suspended while the bank carried out an investigation into the breach of confidential information. Although she attended a number of meetings with Mr Vathis as part of that investigation, she did not inform him that she had “blind copied” Mr Johnson into the email and had forwarded it to her own personal email address, as well as that of her brother. She also failed to mention these details at a disciplinary meeting with another manager, Mr Hood. When the bank learned of these further breaches, she was asked to attend another disciplinary hearing with Mr Hood at which she said she had not acted intentionally and asked again to be promoted.
At this point, the conduct of the disciplinary process was passed to Mr Vathis. When he received the notes of the meetings from Mr Hood, he dismissed her summarily by letter on the basis that her disclosure of confidential information to third parties constituted gross misconduct.
After her appeal was dismissed, Ms Charalambous made claims of automatically unfair dismissal on the ground of having made protected disclosures and unfair dismissal, among other things.
Tribunal decision
Rejecting her claim of automatically unfair dismissal, the tribunal held that she had been dismissed for gross misconduct following a breach of confidential information. As for her claim of unfair dismissal, it held that the bank had a reasonable belief that she had committed misconduct and that there were reasonable grounds for that belief. It had also carried out a reasonable investigation.
As to whether the bank had followed a fair procedure, the tribunal found that while there was a “blurring of distinction” between the investigation and disciplinary stages, two people (Mr Vathis and Mr Hood) were separately involved. In any event, the appeal process had corrected any potential imperfections.
Relying on the decision in Budgen & Co v Thomas, Ms Charalambous argued that the dismissal was unfair as Mr Vathis, the manager who made the decision to dismiss her, did not conduct the disciplinary hearing and, therefore, did not hear directly from her.
EAT decision
Rejecting that argument, the EAT held that although it is good practice for the dismissing officer to meet with the employee, that did not mean that the dismissal is unfair if a meeting has not taken place.
The tribunal was, therefore, entitled to conclude that the actions taken by the bank were reasonable in the circumstances, even though the process was “less than ideal”.
Comment
It should be noted that, in this case, the tribunal considered that whilst there may have been procedural unfairness in not meeting with the employee at the point of dismissal, this was addressed within the internal appeal, where the decision maker did meet with the employee.