When contemplating taking disciplinary action – especially if that action may lead to dismissal - we advise our clients to ensure there is separation of roles (where possible) in the process stages. However, what happens if the investigator is also the disciplinary decision-maker? Is there a risk of unfairness? Emma O’Connor, Legal Director and Head of HR Training, reports on a recent Employment Appeal Tribunal case on this point.
In the recent case of Charalambous v National Bank of Greece , the claimant was suspended from work following an alleged data breach. It was alleged that the claimant had sent an email, with an attachment containing highly sensitive client related information, to recipients outside of the respondent’s organisation – including, it later transpired, to the claimant’s brother who worked for a competitor of the respondent. The data breach also had to be notified to the Financial Conduct Authority given its significance.
Under the terms of the respondent’s disciplinary procedure, decisions regarding dismissal had to be taken by the relevant Country Manager. However, in this case the relevant Country Manager – who was also the claimant’s line manager - had conducted the investigation process. The respondent appointed a separate manager to chair the subsequent disciplinary meeting; however, this manager then sent all of their meeting notes to the (same) Country Manager who, despite taking advice from the respondent’s Data Compliance Officer and Internal Audit, and not hearing the disciplinary meeting personally, took the decision to summarily dismiss the claimant for gross misconduct. The claimant appealed to the respondent’s HR Director; however, the decision was upheld. The claimant brought a case for unfair dismissal.
How could the respondent reconcile its procedure against the need to have different decision makers at the investigation, decision and appeal stages?
Following internal processes – and the ACAS code of conduct – are key pieces of advice that we give managers. However, it is also important to consider the rules of natural justice in any employee related process. For example - does the individual know the case against them? Have they had the chance to state their case? Is the decision-maker acting without bias? Also, where possible, are the investigator/decision-maker/appeal officer different? Failing to follow these rules could render a dismissal unfair, so, how significant was the respondent’s procedure in this particular case?
Both the Employment Tribunal and the Employment Appeal Tribunal found the respondent – based on the facts relevant to this case - had acted fairly, despite the Country Manager not being at the disciplinary meeting personally and also that both the investigation officer and the ultimate disciplinary decision-maker were essentially the same person. The claimant had also been represented by their trade union representative so again, both tribunals were satisfied that the employee had been represented at the meetings.
Although successful in this case, the respondent was not without criticism. The respondent’s disciplinary procedure was described as being ‘less than ideal’ because of the confusion between the roles of the Country Manager/line manager and disciplinary meeting chair. Despite this, both tribunals were satisfied that the claimant had had an opportunity to state their case and make representations as well as see and comment on the evidence which the respondent sought to rely upon.
Is making a decision based on meeting notes enough?
One point which the claimant raised in their tribunal cases was whether it was sufficient that the Country Manager relied on the disciplinary meeting notes the chair had taken rather than hearing their evidence personally? The Employment Appeal Tribunal (EAT) held that the previous case decision the claimant sought to rely on regarding the conduct of dismissal meetings stated that employees should have a chance to “say whatever he or she wishes to say” to the person dismissing. Although this did not happen directly in this present case – because the Country Manager was relying on meeting notes – the EAT was satisfied – on the specific facts of this case – that it did not render the dismissal unfair.
Conducting a fair dismissal procedure
Is this a case to follow? Like most tribunal cases, this is one confined to its own facts. Certainly, an employer is advised – so far as reasonably practicable – to ensure that the employee in question has their case heard by different (and possibly more senior) managers within an organisation as the process progresses from investigation to appeal. The EAT in this case restated procedural “best practice” that the disciplinary officer should meet with the accused employee to hear their case and make a decision directly.
As the EAT noted “it is desirable that such a meeting between the employee and the dismissing officer should take place. It is good practice and something which many employers’ disciplinary procedures will expressly require”. Employers should take heed of this.
Training is key
Our advice is always to follow your organisation’s internal procedures as well as the ACAS code of conduct, remembering the importance of the rules of natural justice. Often an employer can show it had a “fair reason” (as set out in the Employment Act 1996) to decide as it did; however, it failed to follow a fair procedure. Direct meetings between the decision-maker and the relevant employee as well as having separate decision-makers are always the best way to proceed.
Training managers on how to conduct a fair disciplinary or dismissal meeting is key. Through our Training Academy we offer bespoke and tailored training solutions for your management population focusing on how to manage employee relations processes such as disciplinary, performance and absence management. Knowledge does not just happen, managers need support and guidance to build their confidence and have to tools to approach such matters fairly and transparently.
Need to get in touch
For information about our training solutions – in person, virtual or pre-recorded eLearning tools – then speak to me, Emma O’Connor [email protected]
Also, if your business needs experienced HR consultants who can hear and/or advise on an investigation and managing employee related processes, then again get in touch.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.