UK: Unfair Dismissal: Disciplinary Process
Authors: Stephen Miller, Corinna Harris, and Charlotte Stern
The UK Employment Appeal Tribunal confirmed that, in assessing the fairness of a dismissal, the focus should be on how the disciplinary allegations were handled, rather than the surrounding circumstances.
Following an argument between Mr Alom and a female colleague, she received an anonymous abusive email which was found to amount to harassment. Although the sender couldn’t be confirmed after searching his computer, the FCA concluded Mr Alom was responsible based on the content and context. After further incidents and a disciplinary process, he was dismissed for gross misconduct.
Both the Employment Tribunal and the Employment Appeal Tribunal rejected his unfair dismissal claim. The EAT held that procedural flaws in the surrounding circumstances don’t necessarily make a dismissal unfair if the key disciplinary allegations are handled fairly. In response to Mr Alom’s specific arguments:
- Lack of interview transcripts: He wasn’t given transcripts of the female colleague’s investigative interviews. The EAT found that although fairness requires the employee to be provided with sufficient information to respond to allegations, that didn’t necessarily mean having full transcripts. The disciplinary charges focused on two emails he had sent, and the transcripts weren’t provided to the decision-maker either.
- Use of an HR “script”: The decision-maker used a script prepared by HR. The EAT concluded that while some parts suggested views for the manager to adopt, the script invited Mr Alom’s responses without presuming the outcome. The Tribunal was entitled to find that the manager reached his own decision after considering Mr Alom’s representations.
- Computer search and privacy: Mr Alom argued that searching his computer breached his privacy rights under the European Convention on Human Rights. The EAT noted the FCA didn’t rely on the search to support the disciplinary charges or dismissal. Even if the search was disproportionate, it didn’t render the dismissal unfair.
Key Action Points for Human Resources and In-house Counsel
If scripts are used in disciplinary hearings, these should avoid suggesting conclusions for the decision-maker to adopt.
The decision-maker should generally be given the same evidence as the employee and shouldn’t rely on material that’s withheld from them.
