Dismissal and procedural unfairness

A misconduct dismissal was fair, notwithstanding apparent procedural failures.

Background

Mr Alom was summarily dismissed for gross misconduct. The reasons were:

that he’d sent a colleague, Ms S, an anonymous offensive email which was deemed harassment by the FCA, and
that afterwards he’d sent a further email to his and Ms S’s managers which breached confidentiality regarding the report of his unsuccessful complaint made against Ms S

A review of Mr Alom’s work emails was carried out to see if there was evidence showing that he had sent it. The forensic review did not confirm who sent the email but based on its content and other matters, the FCA concluded Mr Alom had sent it. A disciplinary process was undertaken, which resulted in his dismissal.

Mr Alom brought a complaint of unfair dismissal (among others), all of which were rejected by a tribunal. It found that the FCA genuinely believed in Mr Alom’s guilt, the decision to dismiss was based on reasonable grounds and it followed a reasonable investigation. As to the investigation, there were some small errors, but not such as to render the overall process unfair. Mr Alom appealed.

EAT decision

The appeal was dismissed.

Mr Alom argued his dismissal was procedurally unfair for the following reasons:

He was not provided with a transcript of the investigative interviews that had taken place with Ms S who accused him of sending the hostile email.
A 'script' prepared by HR for the line manager at the disciplinary hearing indicated that the line manager was not the true decision maker and that dismissal was a foregone conclusion.
The search of his work computer was a breach of his right to privacy under art. 8 of the European Convention on Human Rights.

As regards point 1, the EAT noted that the ACAS Code provides that fairness requires that the employee be provided with sufficient information about the alleged conduct to enable them to respond to the charges. It states that it would normally be appropriate to provide copies of any written evidence, which may include any witness statements.

The EAT said that this was not an absolute requirement and, here, it found it did not make the process unfair for two main reasons:

The FCA had not relied on anything in the witness evidence - they relied solely on the content of the email itself.
The materials provided to the disciplinary hearing manager did not include the interview transcripts and so they could not have been relied on in reaching the decision to dismiss.

Moreover, Mr Alom made no request during the disciplinary for the transcripts even though the fact of the interviews was known to him.

As regards point 2, in the EAT’s view the ‘script’ prepared by HR did not mean that the FCA had prejudged the issue. The manager conducting the hearing had reached his own decision, taking account of Mr Alom’s representations.

While the script went further than ordering the process and contained some words of judgement, the EAT rejected the allegation that it showed predetermination, noting that whilst the script’s terms may have been unwise, it did not set out or propose any outcome, and the decision maker formed his own independent view on the matters before him.

As regards point 3, the EAT held that the search of Mr Alom’s work computer did not impact the fairness of his dismissal. The FCA did not rely on the resulting report in support of the actual disciplinary charges or decision to dismiss.

Comment

This decision confirms that procedural flaws will not necessarily render a dismissal unfair – so long as the key disciplinary allegations are handled fairly.

The EAT's comment that there is no absolute obligation to provide interview transcripts in every case is a helpful one for employers, however this was a highly fact-specific example. In many cases employers will be relying on evidence received from witnesses interviewed during an investigation process. To the extent they are doing that, the subject of the process needs to understand the basis for the case against them.

And while HR can and should provide preparatory support for a disciplinary hearing, they should be careful not to step over the line into an apparent decision-making capacity or a ‘nudging’ of a manager in a particular direction.