Despina Charalambous v National Bank of Greece

The Employment Appeal Tribunal dismissed the claimant's appeal against the Employment Tribunal's finding that her dismissal for misconduct was fair. The central legal principles applied were those in Part 10 of the Employment Rights Act 1996, in particular section 98(2) (conduct as a potentially fair reason) and section 98(4) (the range of reasonable responses and assessment of fairness). The EAT held that Budgen & Co v Thomas [1976] ICR 344 did not establish a rule that the officer who ultimately dismisses must always hear the employee in person; written evidence or an investigation report can suffice where the decision-maker is provided with full material. The Employment Tribunal had properly considered the disciplinary process as a whole (including the internal appeal) and reasonably concluded that any procedural imperfections were cured by a genuine, independent appeal which reviewed the dismissal and confirmed it was within the range of reasonable responses.

Background and parties: The claimant was a relationship manager in the respondent bank's London private banking office. She sent a confidential spreadsheet of client information to external recipients and was suspended, investigated and dismissed for gross misconduct. She brought claims including direct race discrimination, detriment and automatic unfair dismissal for protected disclosures, and ordinary unfair dismissal. The Employment Tribunal dismissed all claims. The claimant appealed to the EAT on one ground concerning unfair dismissal procedure.

Nature of the application: The claimant challenged the Employment Tribunal's finding that dismissal for misconduct was fair, arguing principally that the decision to dismiss was tainted because the country manager who dismissed her did not personally conduct the disciplinary hearing or meet her, and that Budgen & Co v Thomas established that the dismissing officer must hear the employee directly.

Issues before the EAT:

• Whether Budgen requires that the officer who decides to dismiss must personally hear the employee in order for a dismissal to be fair.
• Whether, on the facts, the Employment Tribunal erred in concluding that the procedure adopted by the respondent was fair when judged as a whole, including the internal appeal.

Court's reasoning: The EAT held that Budgen does not create an absolute rule obliging the dismissing officer personally to hear the employee; Budgen requires that an employee be afforded an opportunity to explain matters to those who will take the decision, but that opportunity can be provided in writing or by report where full and fair material is given to the decision-maker. The EAT applied the statutory test in section 98(4) and the principle that the fairness of dismissal is to be judged by the whole disciplinary process (citing Taylor v OCS Group Ltd). On the facts the Employment Tribunal had found that there was a proper investigation, that the dismissing manager had the investigatory material and notes (effectively a recommendation) before him, and that a senior, independent appeal officer from Athens conducted an appeal meeting with the claimant and reached his own judgment. The Employment Tribunal's assessment that any procedural imperfections were corrected by the appeal and that dismissal fell within the range of reasonable responses was open to it and did not involve an error of law.

Subsidiary findings: The Employment Tribunal had found the respondent had a reasonable belief on reasonable grounds that the claimant committed gross misconduct and that dismissal was within the range of reasonable responses. Those findings were not challenged on appeal.

Appeal dismissed. The EAT held that the Employment Tribunal was entitled to conclude that dismissal was fair: Budgen does not establish a rigid rule that the person who dismisses must personally conduct a disciplinary hearing, and on these facts the decision-maker had the investigatory material and the internal appeal provided an independent review capable of curing earlier procedural imperfections.

Appeal from the Employment Tribunal sitting at London Central (Employment Judge Adkin with Ms L Moreton and Ms C Brayson), written reasons sent 20 December 2021, to the Employment Appeal Tribunal ([2023] EAT 75).