Is a dismissal likely to be unfair if the decision maker relies on a script prepared by someone else?

That was one of the issues the EAT had to consider in Alom v The Financial Conduct Authority.

Facts

Mr Alom had a platonic friendship with a female work colleague (Ms S). They exchanged many non work-related emails and he gave her gifts. He also helped her to write a successful application to get onto a course useful for her advancement. Ms S didn't respond to Mr Alom's emailed congratulations and he discovered that she had blocked him on social media. He was angry about this and confronted her in the staff canteen. During the argument she accused him of stalking her.

The same day Ms S received an anonymous email which was long and threatening. Ms S reported it to HR. She said that Mr Alom had sent the email and made a number of allegations against him - including that he had sent her unwanted gifts and was stalking her. 

The employer started an investigation and Mr Alom denied sending the email. The investigator decided that it was more likely than not that he had sent it, and that it amounted to harassment. However, she rejected the other complaints against him. 

Mr Alom was invited to a disciplinary hearing. He was accused of sending an anonymous email to harass Ms S, and sending a further email to her manager which breached confidentiality. The disciplinary panel found that he had sent the anonymous email and dismissed him for gross misconduct. His appeal failed and he brought a number of claims against the FCA, including unfair dismissal.

The tribunal dismissed all of his claims and Mr Alom appealed to the EAT.

Decision of the EAT

Mr Alom argued that the tribunal had been wrong to reject his unfair dismissal claim for two reasons: 

1. He had not been given copies of the transcipts of the two investigatory interviews with Ms S which, he said, meant that he didn't know the full case against him; and
2. The disciplinary manager had used a script which included statements that suggested that the outcome had been pre-judged by the manager or had been decided by HR.

The EAT rejected both arguments.

Transcripts

Mr Alom had submitted a DSAR during the investigation process and had asked for copies of the transcripts. The FCA said he wasn't entitled to see them and they were never disclosed. The EAT said this didn't matter because the specific allegations against Mr Alom, which led to his dismissal, related to two emails he had sent. He had received copies of these and knew the case against him. He'd also seen the investigation report which explained why the author believed he had written the anonymous email.

The position may have been different if the transcripts had been disclosed to the person who made the decision to dismiss him (or to the appeal manager). But they hadn't and didn't, therefore, form any part of their decision making.

Disciplinary scripts

A member of the organisation's HR team prepared a draft script for the disciplinary manager. It set out the agenda, the order of speaking and provided a list of points that the manager needed to cover. Mr Alom objected to two of these points: the first was about the anonymous email and suggested the manager say  “it was one of the most unpleasant emails I've read”. The second referred to Mr Alom's response to a question the investigator had asked him as being “evasive”. The word evasive was then included in the dismissal letter.

The EAT accepted there was some force in Mr Alom's view that the way in which the script framed certain allegations influenced the outcome. But it didn't here. There was no evidence that the decision maker had already made up his mind and the script didn't presume a particular outcome. The decision maker had been cross-examined during the hearing and the tribunal accepted his evidence.

Learning points for other employers

It's fairly common for HR to give managers draft scripts to help them lead disciplinary hearings or appeal hearings - particularly if they are inexperienced. These can help managers keep on track and go through each of the allegations and the questions they want to ask. 

Whilst it's absolutely fine to script some of the dialogue, such as the opening section and closing bits about when they can expect a decision etc (but NOT the outcome), it's better not to script the whole exchange because:  

• The decision maker may not feel comfortable going off script and miss opportunities to ask additional questions relevant to the issues being determined; and
• If the script is prepared by someone else, it may suggest that the outcome has been pre-determined. 

Both can affect the fairness of the decision, and put the employer on the back foot in terms of 1) convincing a tribunal that the decision wasn't made by somone other than the person tasked to do it; and 2) demonstrating that they considered all relevant evidence. 

Bear in mind that if challenged, managers will need to be able to explain - in their own words - why they reached a particular outcome. If they have followed an entire script, they may find it difficult to convincingly do this.

More generally, employees are entitled to assume that person appointed to make a decision did, in fact, make it. HR are there to advise on the law and procedure, not on culpability or the appropriate sanction (although in respect of the latter, they may give information about the types of sanctions that are available and advise on what sanctions other people have received for committing similar types of misconduct). But they must not influence the actual decision reached. 

A side note: The script wasn't included in the original list of documents and the claimant only found out about it after he made an application for specific discovery. Mr Alom was representing himself and it's not surprising that he regarded the late disclosure of this document with suspicion and considered its contents to be a “smoking gun”. 

The fundamental test for disclosure is whether the document is necessary for the fair disposal of the proceedings. If scripts prepared for the disciplinary manager are relevant to the disciplinary process or the issues being decided by the tribunal, they should be disclosed unless they are privileged. Most won't attract legal advice, or litigation privilege. 

Our newsletters

We publish monthly employment and education newsletters. If you'd like to be added to the mailing list, please let me know.