Date updated: Wednesday 26th July 2023

Two recent Employment Tribunal decisions clarify the position on the need (or lack thereof) to meet with employees before a decision to dismiss following an act of gross misconduct, as well as the importance of ensuring reasonable adjustments are made in all circumstances.

Charalambous v National Bank of Greece 

When a manager makes a decision to dismiss an employee (due to gross misconduct), that manager does not necessarily need to be the same individual who conducted the disciplinary hearing his/herself. Ms Charalambous was dismissed for gross misconduct following a data breach and was dismissed after the manager considered the paper investigation of the incident (which was conducted by someone else).

The assertion established by Budgen & Co v Thomas, that if a dismissing manager did not meet the employee before dismissing them then the dismissal was unfair on the face of it, was rejected. The Employment Tribunal stated that the dismissing manager does not need to “have direct communication with an employee in order for a misconduct dismissal to be fair.” On the contrary, a more holistic approach is taken and the employment tribunal will consider whether the employee was given an opportunity to sufficiently explain their position before being dismissed. Of note in this case is that Ms Charalambous was given the opportunity to attend a meeting after appealing the decision.

The decision is available here.

Megan Crew and Jo Mason v Three Milestone Education Ltd 

Mses Crew and Mason were teaching assistants at a school which caters for children with special or additional needs. Before a staff party, the two Claimants were overheard by their colleagues discussing the delivery of cocaine to Ms Mason by her ex-boyfriend.

Following the notification of the police and the school’s investigation of the incident, Mason was invited to a virtual disciplinary hearing. Mason’s mother was sitting beside her as her representative during the hearing, but the school refused this, citing the school’s policy that only colleagues or union representatives were permitted to attend the hearing alongside Mason. This became the subject of a claim for reasonable adjustments, as Mason is disabled and therefore protected by the Equality Act. The judge found that allowing Mason’s mother to attend the hearing would have been an “easy adjustment to make”. As such, Mason’s claim of failure to make reasonable adjustments succeeded.

The decision is available here.

 

These cases demonstrate two key points:

  1. Although they normally are, the dismissing manager does not need to be the same individual who conducted the disciplinary hearing.
  2. Reasonable adjustments should be made to ensure that employees are not disadvantaged due to a protected characteristic during disciplinary procedures (regardless of the nature of the act of misconduct).  

If you would like further advice in relation to disciplinary processes and how they should be handled, please contact our Employment Law Team or your usual contact at Stone King, who will allocate your query.