EAT Ruling Highlights The Risks In Using A Prepared Script In Disciplinary Hearings

A recent EAT decision highlights the risks in a disciplinary decision-maker using a script prepared by HR (and therefore not privileged) during a disciplinary hearing: the mere fact of using a script will not in itself prove prejudgment and render a dismissal unfair but, if the script strays beyond summarising the law and procedure, it may make it harder for the employer to show that the decision-maker really did make up their own mind having taken the employee's representations into account.

In this case an employee was disciplined for sending an anonymous harassing email to a colleague and a second email in breach of his confidentiality obligations. A search of his computer did not confirm his authorship of the anonymous email, but this was instead deduced from its content and context. The script drafted by HR for the disciplinary hearing provided for the disciplinary decision-maker to state that the email was "one of the most unpleasant emails I've read", that he agreed that its tone and language were "aggressive and threatening and create an intimidating and hostile environment, that is clearly unwanted", and that the employee had been "evasive" when asked about the email; the script then suggested inviting the employee's response to these statements. The language used was then echoed in the dismissal letter. The tribunal rejected the employee's claim that the script was evidence of prejudgment rendering the dismissal unfair. On appeal the EAT recognised that there was some force in the employee's submission that the framing of this part of the script was inappropriate in suggesting what the decision-maker's view should be. However, it accepted that the tribunal was entitled to believe the decision-maker's evidence that he had formed his own view after hearing the employee and to conclude that overall the script did not presume any particular outcome. The fact that the dismissal letter also used the word 'evasive' was not conclusive evidence of prejudgment.

Scripts can usefully provide an agenda, set out the law and refer to evidence or specific points that the decision-maker should raise and consider. However, to avoid the employer being put on the back foot and potentially undermining the decision-maker's credibility, it would be prudent for scripts to avoid suggesting conclusions the decision-maker might reach on the evidence or using language that might give the appearance of bias or predetermination.

The EAT also ruled that the failure to provide the employee with transcripts of the interview with the colleague did not render the dismissal unfair. The Acas Code provides that an employee should be given sufficient information to understand and respond to the case against him, 'normally' including copies of any written evidence, which might include witness statements. However, in this case, the disciplinary charges relied solely on the two emails, the employee had been given a copy of the investigation report summarising the colleague's evidence about the emails, the employee did not repeat his earlier request to see the transcripts during the disciplinary process itself, and the transcripts were not seen or relied on by the decision-maker. In these circumstances, the employee did have sufficient information to understand and respond to the case against him and the failure to provide the transcripts did not make the dismissal unfair. The position will be different where witness evidence is seen and relied on by the decision-maker in reaching their decision.

Finally, the EAT ruled that any breach of privacy in searching the employee's computer did not render the dismissal unfair as the employer had not used the results of that search in justifying the dismissal. It has been reported that the employee intends to seek leave to appeal to the Court of Appeal. (Alom v Financial Conduct Authority)