The importance of following a fair disciplinary process

In the recent case of Alom v Financial Conduct Authority (FCA), the Employment Appeal Tribunal (EAT) examined the procedural fairness of a disciplinary process.

Background

Mr Alom (C) and Ms Shaukat (S), were colleagues at the FCA (R) who had developed a friendship and regularly emailed each other. C and S fell out after a canteen incident on 23^rd January 2020 when S accused C of stalking. That evening, S received an anonymous hostile email regarding her allegation, which she reported to HR along with further complaints about C.

A forensic review of C’s work emails found no evidence that C sent the email, but R concluded he did based on its content and other factors. Though not all of S’s allegations were upheld, R deemed the email harassment.

After receiving the investigation report in January 2021, C emailed two managers disclosing information about his previous complaint against S, referencing detail of the investigation report. R found that C’s disclosure was a breach of confidentiality.

A disciplinary process was initiated based on the emails sent in January 2020 deemed to be harassment and in January 2021 regarding a confidentiality breach. Both allegations were upheld, resulting in C’s dismissal for misconduct, which was not overturned on appeal.

C subsequently submitted claims to the Employment Tribunal (ET) against R alleging unfair dismissal, race discrimination, and victimisation.

Decision

The ET rejected C’s unfair dismissal claim. C appealed.

C claimed R’s failure to provide transcripts of Ms Shaukat’s interviews was procedurally unfair in his dismissal. The EAT disagreed. The EAT found that R had given C enough information to respond to the allegations and that full transcripts were unnecessary under the ACAS Code.

C also alleged R prejudged the disciplinary hearing by preparing a script for the disciplinary officer, but the EAT found the script merely prompted responses and did not presume the outcome, although some parts were deemed inappropriate.

Finally, C argued that searching his work computer breached privacy rights under Article 8 and led to unfair dismissal. This was rejected, as R did not use the search findings to influence dismissal, so it had no impact on fairness.

Comment 

Withholding investigation interview notes does not automatically make a dismissal unfair; fairness depends on the facts of the case. Employers should follow ACAS guidelines, keep disciplinary policies current, and share written evidence when needed.

HR may help with hearing scripts if they are unbiased. Managers must make decisions independently. Broad computer searches didn’t affect fairness in this case, but monitoring must be proportionate and comply with data protection laws.

For guidance on disciplinary processes, such as drafting scripts, or assistance with updating disciplinary policies, please contact a member of our Employment team.