Dismissal upheld as fair despite procedural gaps

The claim

Mr Alom, an employee of the Financial Conduct Authority (FCA), was initially investigated in relation to a wide range of allegations made by a colleague. Ultimately, only two allegations proceeded to a disciplinary hearing that he had:

• sent an anonymous harassing email to the colleague

• breached confidentiality by referring to the outcome of a separate internal investigation in an email.

He denied sending the anonymous email but was found, after a disciplinary process, to have done so and was dismissed for gross misconduct. His internal appeal was unsuccessful.

He then brought claims of unfair dismissal, race discrimination, harassment and victimisation, all of which were dismissed by the Employment Tribunal. He appealed to the EAT, arguing amongst other things that:

• he had not been provided with full transcripts of investigatory interviews

• the dismissing officer had used an HR-prepared script, allegedly showing predetermination

• part of the evidence-gathering involved a computer search which he said infringed his privacy rights. 

The decision

The EAT dismissed the appeal and upheld the finding of fair dismissal. It made three key points:

1. No right to every investigatory document including interview transcripts

• The interview transcripts concerned wider, unpursued allegations  - they weren’t relied on and they weren’t provided to the disciplinary hearing manager. The email content was the focus

• For the two charges actually pursued (the anonymous email and the confidentiality breach), Mr Alom had sufficient information and documentation to understand and answer the case against him. Reference to the ACAS Code of Practice gave guidance that supported this

• The failure to provide full transcripts did not undermine the overall fairness of the disciplinary process

   

2. HR scripts are not inherently improper

• HR had drafted a script for the disciplinary chair, including suggested wording and topics 

• The EAT accepted the Tribunal’s finding that the chair reached his own decision, having heard and considered Mr Alom’s representations

• The script did not show that HR had taken over the decision or that the outcome was prejudged; used properly, it can be part of a structured, procedurally sound process

   

3. Unlawful searches only matter if relied upon

• A search of Mr Alom’s work computer may have engaged his Article 8 right to privacy, but crucially the employer did not rely on the results of that search when deciding the disciplinary charges, the dismissal was based on other evidence.

Overall, the EAT agreed that the employer had a genuine belief in misconduct, based on reasonable grounds and a reasonable investigation, and that dismissal for gross misconduct was reasonable.

Why this matters for employers and employees

The decision clarifies that tribunals will look closely at how the actual misconduct charges were handled, rather than treating every procedural flaw or abandoned allegation as fatal. It also underlines the importance of:

• clearly defining which allegations proceed to a disciplinary hearing

• ensuring the decision-maker genuinely reaches their own view, even with HR support

• separating any potentially unlawful investigatory steps from the evidence relied upon at dismissal

Employers must use HR support carefully – agenda type support for meetings to ensure points are addressed may be a better approach than a “script”. Employers must consider the basis for IT searches, be proportionate and relevant, and bear in mind privacy issues (in parallel with any IT policies in place)

How our Employment team can help you

Our Employment team advises both employers and employees on disciplinary processes, investigations and dismissal risks, including:

• reviewing and drafting disciplinary policies and procedures

• advising on investigations and the proper approach that will stand up to scrutiny

• supporting managers and HR in conducting hearings and appeals

• advising employees facing disciplinary action or challenging dismissals.

If you would like to discuss how this judgment may affect your organisation, or any other employment law issue, please contact us on 020 8290 0440 or speak to a member of our Employment team.