The Employment Appeal Tribunal has ruled that an employee does not always need to be given the opportunity to meet with the decision-maker in order to prevent their dismissal being unfair. It remains best practice to convene a face-to-face disciplinary hearing before any dismissal decision, but there can be exceptions.
In this this case Despina Charalambous, a bank employee, was accused of leaking confidential information. She attended two investigatory meetings, accompanied by her union representative. She was given an opportunity to state her case and to set out mitigating factors. The investigating officer then sent a report (including a note of the two investigatory meetings) to another employee of the Bank, who decided that she should be summarily dismissed.
Ms Charalambous appealed. The appeal hearing was conducted by a third employee of the bank, who had travelled from the Bank’s head office in Greece specifically for that purpose. The meeting was attended by Ms Charalambous and her union representative. Her appeal was dismissed.
At the employment tribunal, Ms Charalambous argued that her dismissal was unfair because a disciplinary hearing had not taken place with the person who reached the decision to dismiss. However, the tribunal decided that the key requirements of a fair dismissal had still been met, given the comprehensive nature of the investigation and the full investigation report available to the decision maker. In any event, any defect in the original process had been put right by the internal appeal.
The EAT upheld the tribunal’s decision. It endorsed a paragraph from the leading employment law text book Harvey, which summarises the law as follows:
“Query, however, whether it is always necessary to ensure that the person actually implementing the dismissal carries out the hearing. Fairness may be satisfied where an investigating officer provides a full report, including any potentially mitigating factors, to the officer dismissing”
This case is a reminder that the rules of thumb that have emerged over the years about how to conduct a fair dismissal for misconduct are just that. However, the principle that an employee should not be dismissed without a disciplinary hearing with the decision maker remains a sound one. In most cases such a hearing will be necessary, but exceptions are possible in some circumstances, as this case illustrates.
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