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No, said the Employment Appeal Tribunal (EAT), on the facts of this case in Alom v Financial Conduct Authority.
The EAT held that the dismissal of Mr Alom was not procedurally unfair despite his assertion that it was unfair because of the failure to provide transcripts of investigation meetings and the use of a script for a disciplinary.
Despite the fact that the FCA won the claim, employers should exercise caution in relying too heavily on the decision, which (like many decisions) is very fact-specific. Caution is needed.
Mr Alom and a female work colleague were on friendly terms. They had an argument, which culminated in an abusive email being sent anonymously to the female colleague. This email was found to amount to harassment. Despite being sent anonymously, there was evidence that the email was sent by Mr Alom. A forensic review did not confirm that Mr Alom was the sender, but based on the argument and the content of the email, the FCA concluded that he was the sender and commenced a disciplinary process. Ultimately, Mr Alom was dismissed.
The appeal
Mr Alom claimed that the dismissal was unfair on the following grounds:
- The transcripts of the investigative meetings with the female colleague had not been provided to him.
- A script prepared by HR for the line manager conducting the disciplinary was evidence that the line manager was not the decision maker and that dismissal was a foregone conclusion; and;
- The forensic search of Mr Alom's work computer was a breach of his right to privacy.
The transcripts
The Acas Code of Practice on Disciplinary and Grievance Procedures states that it will normally be appropriate to provide copies of any written evidence, which may include witness statements, to an individual facing disciplinary action.
The EAT said, however, that it is not an absolute requirement and, in this case, it did not render the process unfair because (a) the employer had not relied on anything in the witness evidence and (b) the interview transcripts were not provided to the disciplinary hearing manager. The EAT found that neither the witness evidence nor the transcripts were relied on in reaching the dismissal decision, and therefore did not impact fairness. The decision was based on the abusive content of the offensive email.
The person facing disciplinary allegations must always understand the case they have to answer at a disciplinary. Ordinarily, allegations may arise during the taking of witness evidence, and in such a case, it would be good practice to provide copies of the evidence. This was not the case in Alom v FCA.
The HR script
It is not unusual at all for HR to provide a script to a manager conducting a hearing. Any suggestion that the way the meeting is conducted is scripted will usually count against the employer. HR is there to advise on processes and laws, but not to guide or influence decisions.
In Alom v FCA, the script was found to be an agenda of points that needed to be covered in the hearing, despite the fact that it contained two problematic passages: (i) it stated that the abusive email was "one of the most unpleasant emails I've read... aggressive... threatening... creating an abusive and hostile environment which is clearly unwanted. I concur with this"; and (ii) "Your response to [X's] email was evasive".
Based on the evidence given by the hearing manager at the tribunal hearing, the EAT rejected Mr Alom's argument that the disciplinary had reached a pre-determined conclusion. There was, however, some force in the argument that a script is inappropriate and that an agenda style would be preferable to avoid any suggestion of a foregone conclusion.
The privacy issue
The privacy issue was found to be a moot point because, on the facts, the search of the computer was not relied on in the dismissal decision. The employer had in place an IT policy which alerted staff to the fact that the use of company systems was monitored. Mr Alom argued that the search went beyond seeking that he sent the email and had trawled more widely.
The EAT appeared to be with him on this and noted that employers must be wary of conducting forensic searches on work computers. Even a robust IT policy will not justify a disproportionately wide search.
Employers must take care and document what is being searched and why in case they have to justify it in a tribunal hearing.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
