July 28, 2023
In a dismissal, the decision maker doesn’t have to actually meet the employee before dismissing them in order for a dismissal to be fair!
Hold on a minute…. Can that be right? Well, as is so often the case with Employment law, nothing is that simple and this both is and isn’t true.
A recent case has given us all a much needed reminder that as with so many things, when it comes to employment law, and dismissals in particular, the key word is “reasonable”. A reasonable process must be followed, but what that is will depend on the circumstances.
As you will all know, if you are considering dismissing an employee for misconduct you need to follow a fair process before reaching your decision and ideally the ACAS code should be followed. The ideal process would go something like this:
However, in Charalambous v National Bank of Greece the process the bank followed was nothing like this! The Claimant was dismissed for gross misconduct after committing a data breach. During the process which led to the dismissal, the dismissing manager was involved in the early stages of the investigation, before handing it over to another manager to complete after realising he would need to be the decision maker. Ultimately, the manager made the decision to dismiss based on a paper consideration of the investigation reports, without meeting the Claimant to discuss the case. The Claimant appealed. The Claimant then attended an appeal meeting with the person making the decision on the appeal. The appeal was rejected and the Claimant submitted a claim to the Employment Tribunal who found the dismissal was fair. The Claimant appealed to the EAT.
At the appeal the EAT rejected the Claimant’s argument that a previous EAT case Budgen & Co v Thomas established that if a dismissing manager didn’t meet the employee, the dismissal was unfair. The EAT noted that it was desirable for a meeting to take place before a decision to dismiss was taken, but found that the key principle in Budgen was that an employee should have an opportunity to explain their position sufficiently before any decision to dismiss was taken, which the tribunal found had occurred here, even if the process was "less than ideal". Furthermore, the appeal involved a meeting so that would have cured any defect in the first stage of the process.
The tribunal found that overall, the procedure was within the range of reasonable responses and the dismissal was fair.
Now, my advice would be to take this with a pinch of salt. This case was specific to its facts and an employer would have to be pretty lucky to dismiss without meeting the staff member and it still be found to be fair. In addition, it is always worth remembering the cost and time that will have been spent defending such a claim – even if the decision ultimately goes your way. Following a clear and reasonable process, which is set out in your internal procedures, and drafted based on the ACAS code, is likely to avoid many claims being issued in the first place. Avoiding a litigation is a far better position to be in than winning a case after months (or, given the backlog at Tribunals, possibly years) wasted and thousands of pounds spent. Therefore, if you have a disciplinary procedure in place, give it a once over to make sure it’s fit for purpose, and, assuming it is, make sure you follow it!!! If you don’t have a disciplinary procedure in place yet, get one – now!!
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