Employment & Pensions Blog: Procedural Fairness and Unfair Dismissal: Alom v The Financial Conduct Authority

In the recent case of Alom v The Financial Conduct Authority, the Employment Appeal Tribunal (EAT) has handed down an important judgment setting out what Employment Tribunals should look to when deciding if a disciplinary process has been carried out fairly. With a particular focus on what evidence should be provided to the employee under investigation, how a search of an employee’s IT system should be conducted, and the use of scripts in disciplinary hearings. 

Background

The Claimant, Mr Alom, started working for the Financial Conduct (FCA) in 2015. In 2017/2018, he developed a friendship with one of his colleagues, Ms S. Their relationship later soured leading to verbal disagreements and Ms S accusing the Claimant of stalking her. Ms S raised a formal complaint about the Claimant’s conduct, including an anonymous threatening email she received that she believed had been sent by the Claimant. 

The FCA investigated the matter, and the Claimant denied sending the email. The investigation concluded that the email amounted to harassment, and that the references in the email to conversations and events between the Claimant and Ms S were specific enough that (on the balance of probability) it was likely sent by the Claimant. After a disciplinary hearing, the Claimant was dismissed for gross misconduct.

The Claimant submitted claims for unfair dismissal, victimisation and racial discrimination, all of which were unsuccessful in the Employment Tribunal. 

The Employment Appeal Tribunal - Procedural Unfairness

The Claimant appealed principally on procedural grounds, arguing that the dismissal was unfair because a fair procedure wasn’t followed.   

Investigation Transcripts

The Claimant argued that as his employer failed to provide the transcripts for the initial investigatory meetings with Ms S, he was unable to properly respond to the allegations against him which led to the dismissal process being unfair. 

The EAT recognised that the ACAS Code of Practice on disciplinaries sets out that employees under disciplinary investigation should usually be given copies of all the relevant evidence, including witness evidence. However, the EAT concluded that this is not an inflexible rule. In this instance, the decision to dismiss had been taken based on the anonymous emails, and the wider investigation interview transcripts had not been relied upon by the dismissing officer. 

Therefore, it was not procedurally unfair not to have given the transcripts to the Claimant ahead of the disciplinary hearing.

Searching the Claimant’s Work Computer and Emails

The Claimant accepted that his employer had a right to search his work emails. However, the Claimant argued that by carrying out the search before he was notified of the harassment complaint against him, the wide-ranging search breached his human rights to privacy and rendered the dismissal unfair. 

The EAT recognised that searching computers and email accounts can engage privacy rights, but it declined to comment on those issues. Instead, the EAT focussed on whether the documents that were found through the search materially impacted the outcome of the disciplinary. In this instance, the FCA had not relied on ‘the fruits’ of its search, and therefore the decision to dismiss (and the procedure followed) wasn’t unfair. 

HR Providing a Disciplinary Script

The Claimant’s final procedural complaint was that the FCA’s HR team had provided the disciplinary chair with a script for the hearing. The script described the anonymous email as “one of the most unpleasant emails I’ve read”, and the Claimant’s response to the investigation as evasive. In his appeal, the Claimant argued that the script had prejudiced the disciplinary chair against him. 

The EAT criticised the way the script was drafted, describing it as inappropriate. However, the EAT found the effect of this wording in the script did not rise to the level prejudicing the disciplinary chair, and the decision to dismiss was their chair’s alone. 

The Claimant’s appeal (and his unfair dismissal claim) was therefore unsuccessful. 

Comment

HR Professionals and disciplinary managers will be familiar with the different procedural points the EAT addressed in this case. It is common for HR to provide scripts for key employee relations issues, and likewise it is common for investigations to involve searching computers and email addresses.

What seems to have saved the FCA in this case was precise records of exactly what material had been considered at the disciplinary hearing, and what the basis for the reason to dismiss was. Whilst HR are free to provide scripts for disciplinary chairs, they should be drafted using neutral language to avoid any suggestion of influencing the chair to a particular decision. The other takeaway is that searching work computers and email accounts can trigger human right privacy considerations, and if this is something employers want to be able to do then (in the very least) it will need to be clearly set out in their Privacy Notice.  

If you require any assistance with any disciplinary or workplace investigations, please contact a member of our Employment Team.