Case update

Use of script written by HR did not make a dismissal for misconduct procedurally unfair

In Alom v Financial Conduct Authority, the Employment Appeal Tribunal (EAT) dismissed an appeal by an employee against a decision of the Employment Tribunal (ET), which held that his dismissal for misconduct was not procedurally unfair. The case has relevant takeaways for employers conducting disciplinary investigations and hearings, in particular regarding scripts written for decision-makers by HR. Click here for our key takeaways for employers.

Background

Mr Alom (the Claimant), who worked for the Financial Conduct Authority (the Respondent), was summarily dismissed for misconduct. Following an investigation, the Respondent concluded that the Claimant had sent an anonymous email to a female colleague which amounted to an act of harassment; and a further email which breached confidentiality in relation to the report of an unsuccessful complaint by him about the alleged conduct of the same colleague.

The Claimant brought a claim against the Respondent on the grounds of unfair dismissal, direct race discrimination, race-related harassment and victimisation. He also claimed that the process followed by the Respondent was unfair. The Claimant contended that the decision to dismiss was predetermined and in bad faith, and that the searching of his work emails and computer was too broad.

Employment Tribunal (ET) decision

The ET dismissed these complaints. It held that:

  • The overwhelming reason for the Claimant’s dismissal was his conduct. The evidence that he had written the first email was compelling and he had accepted in cross-examination that, if he had sent it, it would justify dismissal. It was reasonable for the Respondent to conclude that he had.
  • The decision to dismiss was therefore based on reasonable grounds and followed a reasonable investigation.
  • There were small errors in the investigation but not such as to render the overall process unfair.

The Claimant appealed to the EAT. He argued that:

  • The ET should have held that this dismissal was procedurally unfair because he had not been provided with copies of the transcripts of the two investigation interviews with his female colleague.
  • The content of a ‘script’ prepared by HR for the disciplinary hearing showed that the dismissing officer had prejudged the matter.
  • The searching of his work emails and computer infringed his Article 8 right to privacy. He did not object to the attempt to identify the source of the anonymous emails but contended that the exercise had sought to analyse the extent of his professional and personal relationship with his colleague, and thereby cast the net unreasonably wide.

Employment Appeal Tribunal (EAT) decision

The EAT dismissed the Claimant’s appeal. The EAT held that:

  • The fact that the Claimant had not been given copies of the transcripts of the interviews did not mean that the dismissal was unfair. The disciplinary charges related only to the two emails and he had sufficient information to defend himself.
  • The ET was entitled to accept that the decision to dismiss was reached independently by the dismissing officer. The overall script prepared by HR did not presume any particular outcome of the process, even though parts of the script may have been inappropriate because they suggested what view the dismissing officer should put forward about the emails.
  • The search of the Claimant’s work computer, as part of the initial investigation, was not relied upon in support of the actual disciplinary charges or the decision to dismiss.
  • Although the parties did not receive the judgment until nine months after the hearing, an “unacceptably long” delay, and there were certain errors and omissions in the written reasons, the Claimant had received a fair hearing.

Key takeaways

  • Use of scripts in disciplinary hearings/meetings: Although the wording of the script prepared by HR in this particular case did not render the process unfair, this case is a reminder that scripts prepared by HR teams for disciplinary hearings and other meetings with employees should be worded carefully and not include subjective comments or opinions, as this may undermine the process. It is important that decision-makers are able to evidence sufficient independence from HR.
  • Provision of information: Employees should be provided with sufficient information related to the case against them, so that they can adequately respond to the charges. This should ultimately be assessed on a case-by-case basis. In this case, the EAT noted that there was no obligation to provide interview transcripts to the employee.