Facts
The claimant, Ms. Charalambous (C), was employed by the National Bank of Greece as a relationship manager, in London. She had a number of complaints during her employment: in relation to her remuneration, perceived discrimination between employees in London and those in Greece, and the perceived incompetence of at least one colleague. She also blew the whistle on two occasions; once relating to a suspicious transaction and the other relating to alleged breaches of the Financial Conduct Authority (FCA) rules.
In January 2019, C emailed the London office manager (V) requesting a promotion and pay rise. She attached a spreadsheet containing a breakdown of all private clients as at the end of the preceding month including commissions, turnover, total assets, year-end comparisons, foreign exchange transactions and total assets by currency. She copied the email to her external trade union representative and blind-copied her lawyer. The next day, she forwarded the email and attachment to her personal email address and her brother, who worked at another bank. She also forwarded it to HR, again copying her union representative.
The bank suspended C pending a disciplinary investigation into the confidential client data breach and alerted the FCA (which decided no further regulatory action was required).
V held an investigation meeting with C. At this time, the bank was not yet aware that C had sent the email to her lawyer and brother, despite having asked C directly. At the investigation meeting, she again said she had only sent it to her union representative. Following the meeting she provided a written account of the incident, again failing to mention the other external recipients. She explained that sending the spreadsheet had been an innocent mistake and that she had been busy and under pressure. In both the investigation meeting and the written document, she reiterated her request for a promotion.
The bank invited her to a disciplinary meeting, although the tribunal concluded that this meeting was more in the way of a further investigation meeting. This took place with a different manager (H). She again did not disclose that she had sent the email of 23 January to external recipients other than her union representative.
Following this meeting the bank reviewed her emails and discovered the other external recipients. H invited her to another disciplinary meeting to discuss this. She explained her actions had not been intentional.
H forwarded all the notes of the meeting to V and then V took the decision to summarily dismiss C. She appealed but this was rejected.
C complained of unfair dismissal and detriment on whistleblowing grounds, “ordinary” unfair dismissal and race discrimination. The tribunal dismissed all the claims. The reason for dismissal was her gross misconduct, not whistleblowing or race. C was allowed to appeal to the EAT on one ground relating to the “ordinary” unfair dismissal claim: namely, whether the dismissal had been procedurally fair.
Decision
The EAT dismissed the appeal.
C sought to rely on a judgment from 1976 (Budgen & Co v. Thomas) as meaning that the dismissing manager had to meet directly with the employee. However, the EAT disagreed. It recognised that having such a meeting is desirable, it being good practice and something which many employers' disciplinary procedures will expressly require. However, it was not a strict rule of law. The underlying point of fairness is that the employee has the opportunity to put their case and explain themselves. In this case, it had been open to the tribunal to decide that C did have such an opportunity.
Comment
This decision is a reminder that the statutory test for fairness is a broad one, with a large degree of discretion afforded to tribunals. Nonetheless, having a direct meeting between the dismissing manager and employee is very much the norm, meaning that many tribunals would consider the absence of such a meeting to be procedurally unfair. The blurred lines between the investigation and disciplinary meeting is also something frowned upon by the Acas Code of Practice on disciplinary and grievance procedures. We therefore recommend that, in most cases, having a full disciplinary meeting between the dismissing manager and employee would be strongly advisable.
In this case, we infer that the tribunal was persuaded by the clear and undisputed serious data breach, and the fact that C had been able to put across her explanation, which in any event amounted to little more than a vague assertion of having made a mistake (despite repeatedly sending the attachment), and the fact that she had been repeatedly untruthful about who she had shared the client data with.
Case: Charalambous v. National Bank of Greece (EAT)
