Despina Charalambous v National Bank of Greece

In determining procedural fairness under section 98(4) of the Employment Rights Act 1996, an employment tribunal must assess the disciplinary process as a whole and apply the range of reasonable responses test to the particular circumstances.

A misconduct dismissal is not necessarily unfair because the dismissing officer did not personally meet the employee. The employee must have a sufficient opportunity to explain their position before dismissal, but that opportunity may be provided through recorded disciplinary meetings and material placed before the dismissing officer. A fair and independent internal appeal may also correct imperfections at an earlier stage.

The claimant was summarily dismissed for gross misconduct after sending confidential client information to external recipients. The manager who made the dismissal decision had not personally conducted the two disciplinary meetings, although he received their records and the claimant's mitigation.

The Employment Tribunal dismissed claims including ordinary unfair dismissal. It found that the procedure, viewed collectively with an appeal conducted by a senior and independent manager who met the claimant, was within the range of reasonable responses.

The claimant appealed solely on procedural fairness. She contended that the initial dismissal was necessarily unfair because the dismissing officer had not heard directly from her, and that the appeal could not cure that defect.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the misconduct dismissal was procedurally fair. Its conclusion involved no error of law.

2. Budgen & Co v Thomas [1976] ICR 344 did not establish an inflexible rule that a dismissing officer must have direct personal communication with the employee at a meeting. Its essential point was that the employee must have a sufficient opportunity to explain their position to those deciding whether dismissal should occur. That opportunity may, depending on the circumstances, be provided in writing or through a report that places the employee's case and mitigation before the dismissing officer.

3. A direct meeting between the employee and the dismissing officer is desirable and may be required by an employer's procedure. Its absence may make some dismissals unfair, but fairness remains the statutory assessment under section 98(4) of the Employment Rights Act 1996. The assessment should not become encrusted with rigid case-law requirements.

4. On the Tribunal's findings, the claimant had two recorded meetings with union representation, at which she could answer the allegations, comment on the evidence and advance mitigation. The dismissing officer had that material before him. The Tribunal could therefore conclude that the less-than-ideal procedure was nevertheless reasonable.

5. In any event, the Tribunal was entitled to assess the process as a whole. The independent appeal officer met the claimant, received substantial material from her and made his own judgment. The appeal could correct the identified earlier imperfections. No remittal was required.

• Employment Appeal Tribunal: dismissed the claimant's appeal against the Employment Tribunal's dismissal of her unfair-dismissal claim: [2023] EAT 75.
• Employment Tribunal (London Central): dismissed the claimant's claims, including unfair dismissal, in written reasons sent on 20 December 2021.