The Claimant had undertaken the cash balance exercise in the Castlebar branch of the Ulster Bank one evening in March 2010, where she had been employed as a bank official for ten years. On this particular day her car had been left at a local garage for service. At some point after Ms Egan had completed the cash balance for the branch, which was after the close of business and at a time when the branch’s electronic processing systems were closed for the day, she realised that she did not have cash to pay the car service and had no access to money, as her purse, which contained her credit cards, was elsewhere. Ms Egan took €350 from a cash drawer in the bank, and left a debit docket in the drawer for that amount. On the next business day, on which the Claimant was not scheduled to work, she phoned a colleague before branch opening and asked her colleague to replace the €350 by way of a transfer out of the Claimant’s account. Her colleague, however, referred the matter to her supervisor, who in turn reported it to the branch manager. A disciplinary process ensued. 

After a fact-finding investigation and a disciplinary hearing, Ms Egan was dismissed on the basis that her actions had breached the Bank’s cash-handling policies, which prohibited the processing by any employee of banking activity on his or her own account. Her actions amounted to gross misconduct as defined in Ulster bank’s disciplinary policy. The possible sanctions provided for included dismissal. The Bank considered that trust was irrevocably broken down between it and Ms Egan owing to her breach of what was a fundamental bank rule. 

The Claimant exercised her right of appeal against the decision to dismiss. 

The Claimant’s appeal was heard by a Business Banking Manager (“BB”) and a Human Resource Partner (“HR”). The outcome – a rejection of the Claimant’s appeal – was not communicated for some seven weeks after the appeal hearing. The EAT heard evidence from HR that BB and HR had initially disagreed as to the appeal outcome after hearing the appeal. BB (who did not give evidence at hearing) had formed the opinion that dismissal was too extreme a sanction and had initially been of the view that Ms Egan’s appeal should be upheld. Evidence was heard that BB had changed his view after taking advice from the Bank’s Human Resources department. Ultimately a letter confirming the rejection of the Claimant’s appeal was signed jointly by BB and HR. Ms Egan later exercised her right to an external appeal, which was conducted by an independent person. The external appeal was rejected. 

Determination 

The EAT said that it was clear from the evidence of HR that BB felt that dismissal was a disproportionate penalty. Ultimately, in the absence of evidence from BB, the EAT was unable to satisfy itself that he had not been subjected to undue influence which led him to change his view of the outcome of the appeal. The Tribunal therefore concluded that the conduct of the appeal was not fair and, accordingly, that the dismissal was unfair. The determination is silent as to the Tribunal’s own view as to whether the dismissal was an appropriate sanction in the circumstances. The EAT determined that the period between dismissal and re-engagement be treated as a period of unpaid suspension, thereby preserving the Claimant’s continuity of service. 

The case serves as a reminder of how closely the EAT will scrutinise procedures preceding a dismissal, even in instances of accepted misconduct. The case illustrates the need to ensure that where an employer provides guidance to a person conducting an appeal (or for that matter a disciplinary hearing), care is taken so that that person’s independence and objectivity is not compromised. The EAT will be watchful for the exercise of undue influence by the employer over independent decision-makers in the internal disciplinary process. 

On a separate note, the EAT’s order that the Claimant be re-engaged represents a break from the ‘norm’, which is that compensation is generally awarded to a successful unfair dismissal Claimant in any case where trust has broken down between the parties. The report is silent as to what remedy was sought in this case by the Claimant. 

Full Case Decision:
http://www.eatribunal.ie/determinationAttachments/754fceaf-8757-40bf-afed-40c47c46ab72.pdf