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Facts: Mr Alom, the employee, had a dispute with a female colleague. After an argument in the canteen, the colleague received an anonymous email containing harassing and threatening language. The colleague alleged that Mr Alom had sent it. An investigation was carried out into this allegation (including a review of Mr Alom’s work emails) and also into counter-allegations made by the employee. The investigation concluded, on balance, that it was likely the employee had sent the anonymous email and recommended that this be considered at a disciplinary hearing.
After the investigation, Mr Alom emailed both his and the colleague’s line managers, referring to a recommendation contained in the investigation report. Sharing this information was treated as a potential breach of confidentiality.
At the disciplinary hearing, Mr Alom was found guilty of gross misconduct for the anonymous email and misconduct for the confidentiality breach. He was summarily dismissed.
Mr Alom brought claims of unfair dismissal, race discrimination and victimisation.
Tribunal decision
The Tribunal dismissed all of the claims. In respect of the unfair dismissal claim, the Tribunal held that it was reasonable for the employer to have come to the conclusion that Mr Alom had sent the anonymous email (on the balance of probabilities) despite his denials. Whilst there had been some small errors in the disciplinary process, this was not enough to make it unfair.
Mr Alom appealed on several grounds as set out below.
EAT decision
Outcome prejudged: Mr Alom argued that an HR-prepared ‘script’ for the disciplinary manager showed the outcome had been predetermined, going beyond HR’s proper role of advising on law and procedure.
The EAT accepted that parts of the script – where HR suggested how the manager should interpret the emails – were ‘inappropriate’ and commented that if HR and managers provided scripts they should stick to an ‘agenda’ style, without making any judgements or conclusions. However, the script did not in fact dictate the outcome; it allowed for the employee’s responses and other evidence showed the manager reached their own view. The Tribunal was therefore entitled to find no predetermination.
Failure to provide investigation transcripts: Mr Alom said he should have been given transcripts of his colleague’s investigation interviews. The EAT rejected this, noting the ACAS Code only requires ‘sufficient’ information to allow a meaningful response. The disciplinary allegations only concerned the two emails he sent. He had copies of the emails and the investigation report which identified the evidence which had been used to identify him as the sender. It also summarised what his colleague had said about the email. Neither the dismissing nor appeal officer had seen or relied on the transcripts, so Mr Alom was not disadvantaged.
Breach of right to private life: Mr Alom argued that a search of his work computer breached his rights under Article 8 of the Human Rights Act 1998. The EAT held that even if the search was disproportionate, it did not affect the fairness of the dismissal. The employer had not relied on the search when deciding to dismiss, so it could not render the dismissal unfair.
Implications:
This decision confirms that procedural flaws will not automatically make a dismissal unfair so long as the core disciplinary allegations are investigated and determined fairly.
The EAT’s observation that employers are not under an absolute obligation to provide interview transcripts is helpful, but it does depend on the context. The decision maker should generally have the same evidence as the employee and if underlying documents (like investigation transcripts) are going to be withheld from the employee, the employer needs to be satisfied that the employee still has sufficient information to properly understand and respond to the disciplinary allegations against them. The decision maker should not be influenced by or rely on material that the employee has not had the opportunity to address.
Also, while HR can and should support managers in preparing for a disciplinary hearing, they must avoid straying into decision-making or improperly steering the outcome. Scripts should never presume that a particular outcome will be reached; should present evidence in an impartial manner; and should avoid appearing one-sided by not inviting responses from the employee. The disciplinary manager must always take ownership and form their own view of the matter, and (ideally!) not rely too much on HR support.
Finally, employers conducting IT investigations (e.g. email reviews or system audits) must ensure searches are proportionate and justified. The searches should be documented, and employers should clarify in their policies whether and how the results are used in disciplinary decisions.
5.0/5