In the vast majority of cases, the answer is certainly yes. However, in Charalambous v. National Bank of Greece,the Employment Appeal Tribunal (EAT) found that an employee was fairly dismissed even though the manager who reached the decision to dismiss did not meet the employee.
Ms Charalambous (the Claimant) was dismissed for sending emails containing confidential information to external parties such as her solicitor, her trade union representative and her brother (who worked for a competitor). This amounted to unauthorised disclosure of personal customer data which had to be notified by the National Bank of Greece (the Respondent) to the Financial Conduct Authority. Mr Vathis carried out the initial investigation into the allegations. Mr Hood then took over the investigation process and met with the Claimant to discuss the allegations on two occasions. The decision to dismiss was then taken by Mr Vathis after considering the notes from the two meetings Mr Hood had held with the Claimant. Having made his decision, Mr Vathis wrote to her to confirm that decision without meeting again with the Claimant. The Claimant appealed against her dismissal and attended an appeal meeting, where the appeal was duly considered but dismissed.
The Employment Tribunal found that the Respondent’s decision to dismiss was within the range of reasonable responses open to a reasonable employer. The Claimant appealed that decision. One of the grounds for appeal was that Mr Vathis did not conduct the disciplinary hearings and had not met the Claimant prior to reaching his decision to dismiss her.
The EAT confirmed that a fair disciplinary process will normally involve an investigation carried out by one manager and then a separate and distinct disciplinary hearing carried out by an independent decision-maker. That hearing would involve a meeting between the employee and the decision-maker.
However, in this case the EAT took into account the fact that the Claimant did have two formally recorded meetings with Mr Hood where she was accompanied by her trade union representative and had an opportunity to set out her case, comment on the evidence and mitigating circumstances, all of which were set out in the minutes of the meetings. Mr Vathis had the benefit of the written record of both of these meetings prior to reaching the decision to dismiss. According to the EAT, this was sufficient in the particular circumstances.
In any event, the EAT found that, in this case, any imperfections identified in the disciplinary process were capable of being, and had in fact been, rectified by a full appeal process. The EAT therefore rejected the Claimant’s appeal.
The EAT reached its decision on the facts of the particular case. It is not authority for the proposition that a dismissal can always be fair even if the disciplining manager does not meet the employee.
The EAT confirmed the ideal disciplinary process is one that fully complies with the ACAS code of practice on disciplinary and grievance procedures and will give the employee concerned the opportunity to address the decision-maker. However, this case does serve to highlight that what is required is a reasonable process in the circumstances – as circumstances can vary dramatically, there are few absolutes. Despite this, company procedures and best practice should still be followed in most cases. On the odd occasion that a disciplinary process deviates from the “norm” or best practice, that will not automatically render a dismissal unfair, though it is likely to increase the risk of a challenge. The case is also a useful reminder that imperfections at the point of dismissal can be rectified by a good appeal process. In this case, the appeal manager ticked the boxes of being independent, more senior than the dismissing manager and had considered the circumstances and mitigations carefully. He was found to have a genuine and reasonable belief that the circumstances of the case merited dismissal.
In short, application of best practice dismissal procedure is clearly the simplest way to manage risks, but minor imperfections and/or deviations in procedure are not always fatal to a finding of fair dismissal. The band of reasonable responses is sufficiently broad to allow for some flexibility in the process as long as overall the process is fair.