The Question:
Can a dismissal on gross misconduct be justified where the disciplinary chair decides to base his/her decision on a paper hearing looking at the written evidence without the attendance of the employee who is alleged to have committed an act of gross misconduct?
The Answer:
The Acas code of practice on disciplinary procedure in paragraphs 9, 10 & 12 suggests the need for a disciplinary meeting and states that "a failure to follow the Code does not, in itself, make a person or organization liable to proceedings. However, employment tribunals will take the Code into account when considering relevant cases".
But despite this wording, the Employment Appeal Tribunal (EAT) has decided on the specific facts in the case of Charalambous v National Bank of Greece, that although it is desirable and good practice to have a meeting but if the investigation is detailed and before any dismissal the employee is given the opportunity to sufficiently explain his/her position on the matter then a disciplinary hearing could be paper based if an appeal was given to correct any procedural errors.
In arriving at this decision, the (EAT) rejected the findings of a previous EAT case Budgen & Co v Thomas 1976, that established that if a dismissing manager didn’t meet the employee, the dismissal was on the face of it unfair and in this case no appeal was given.
The Risk/Threat:
Where there is an unreasonable failure to adhere to Acas code of practice on disciplinary procedures, employment tribunals are able to adjust any awards by up to 25 percent where an unfair dismissal claim is upheld.
What you need to:
Before an employer initiates any investigation and then any disciplinary proceedings against an employee, especially on matters related to gross misconduct they should take HR guidance, as the decision in Charalambous v National Bank of Greece is helpful where say an employee fails to co-operate with the process or goes off on long term sick as an excuse to avoid the disciplinary process but is not the norm and is based upon its own facts.
The process of dismissal must be looked at as a whole, including the appeal process, as made clear by the Court of Appeal in the case of Taylor v OCS Group Ltd.
If you require any further assistance, please do not hesitate to contact our HR/Legal advice line team at 0116 274 9193.
