In a recent case, the Employment Appeal Tribunal (EAT) has helpfully confirmed that the use of a script at a disciplinary hearing, does not necessarily mean that the outcome has been pre-judged.

Read below how a significant case ruled in favour of an employer.

When is an ‘unfair’ dismissal not an Unfair Dismissal?

The Employment Appeal Tribunal (EAT) has this month provided some welcome clarification for employers that minor issues relating to the surrounding circumstances of a dismissal will not render the dismissal unfair.  Importantly, the preparation by HR of a script for a manager conducting a disciplinary hearing will not necessarily demonstrate that the outcome of the hearing is pre-judged, and nor will it necessarily show that the decision was made by someone other than the disciplining manager.  The focus in all cases should be on the reasons for and the fairness of the dismissal itself, and the treatment of the particular allegations relied upon, not on the wider surrounding circumstances.

Facts of the case

In the case of Alom v Financial Conduct Authority, Mr Alom was dismissed for gross misconduct, following an allegation that he had:

1. sent an anonymous email to a colleague amounting to harassment; and
2. sent a further email breaching confidence in relation to an allegation by him about the same colleague.

Mr Alom alleged that his dismissal was unfair and that the dismissal and the rejection of his appeal amounted to discrimination on grounds of race.  In support of his claim for unfair dismissal, Mr Alom relied upon the fact that:

1. he had not been sent transcripts of the interview with the colleague he was said to have harassed;
2. a script was produced for the disciplinary hearing, which he said showed that the outcome had been pre-judged; and
3. that his work computer was searched, which he said infringed his Article 8 rights to a private and family life and was disproportionate.

The employer maintained that the transcripts were not relevant to the matters to be determined, as the disciplinary charges related only to the specific emails, copies of which he was provided.  Further, the employer argued that the script prepared by HR did not demonstrate that the decision had been pre-determined, and that the searching of the Claimant’s computer was reasonable in the circumstances of the case and in any event, was not relied upon in relation to his dismissal.

Findings

The EAT made a number of findings which will be of some comfort to employers when dealing with similar situations in the workplace.  Importantly, the EAT concluded that:

1. the fact that the Claimant was not sent full transcripts of the investigation with the colleague did not render the process unfair.  Neither the dismissing nor appeal managers had copies of the transcripts, and neither relied upon them in making their decisions.  The information and materials that the Claimant was given were sufficient for him to answer the allegations which he faced;
   
2. regardless of whether there was any interference with the Claimant’s Article 8 rights as a result of his computer being searched, the results of such search were not relied upon in relation to the disciplinary hearing which led to his dismissal.  That being the case, even if this had amounted to a disproportionate interference with the Claimant’s Article 8 rights, there was no basis on which the Tribunal could properly have concluded that this rendered the dismissal unfair;
   
3. the Employment Tribunal was entitled to find that the use of the script at the disciplinary hearing did not demonstrate that the decision had been pre-judged.  Even the use of the following two phrases in the script did not necessarily mean that the outcome was pre-determined:
   
   1. I’ve read the email of 23 January – it was one of the most unpleasant emails I’ve read. Natasha said in para 8.15 of her report that its tone and language are aggressive and threatening and create an intimidating and hostile environment, that is clearly unwanted. I concur with this. I’d like to know your perspective on this?
      
   2. Your response to Nathalie’s email of 8 June 20 was evasive. Can you talk me through your response please?

The Employment Tribunal had been entitled to conclude that there had been discussions around the documents referred to and that the disciplining manager had only made his decision having heard from the Claimant, having taken on board what the Claimant had said, and having formed a genuine belief in the Claimant’s guilt.  The EAT was satisfied that the script ‘did not presume any particular outcome of the process’ and merely prompted the disciplining manager to ask the Claimant for his comments.  Further, the outcome letter set out the disciplining manager’s reasoning for his decision.

This case should provide some reassurance to employers that a failure to provide additional information and evidence, which is not relied upon or relevant to the decisions to be made, will not necessarily render a process unfair.  Further, assistance from HR in providing a script to follow will not necessarily demonstrate that a decision has been pre-determined.  However, we would always recommend ensuring that the language used in any such script is neutral and does not suggest any particular outcome.

Scripts for disciplinary/dismissal hearings can be invaluable, particularly for those managers who may be less confident in carrying out disciplinary hearings. The team at Tyr are always happy to assist with preparing and reviewing such scripts and otherwise advising in relation to disciplinary procedures.