Procedural issues when conducting disciplinary processes  

The Employment Appeal Tribunal (EAT) decision in Alom v Financial Conduct Authority serves as a useful reminder to schools that the test for unfair dismissal is whether a dismissal falls within a range of reasonable responses. This applies to both the procedure followed and the decision made.

It highlights the importance of conducting fair processes when handling allegations of misconduct.

Background

Mr Alom was summarily dismissed by the Financial Conduct Authority (FCA) for gross misconduct on 1 April 2021, after sending two inappropriate emails to a colleague that constituted harassment.

He had formed a friendship with a colleague, AS, which involved regular email exchanges. On several occasions, Mr Alom sent her gifts.

On 23 January 2020, an altercation occurred after Mr Alom discovered AS had blocked him on Skype. AS accused Mr Alom of stalking her and, later that evening, received an anonymous email which referenced her stalking allegations and other details that would likely only be known to her and Mr Alom, which she perceived as threatening.

Mr Alom emailed AS on 27 January 2020, alleging that she was spreading rumours about him to security after witnessing her being escorted to her car by security. When AS confronted security, they revealed that Mr Alom asked about her and what she had told them.

AS subsequently complained to HR about Mr Alom’s behaviour, including the anonymous email. An investigation was conducted and, in response, Mr Alom submitted a counter-complaint against AS, accusing her of sexual harassment, spreading malicious rumours and making false police reports. These allegations were not upheld.

A forensic review of Mr Alom’s work emails was carried out as part of the investigation, to determine if he had sent the anonymous email. Although the review did not confirm details of the sender, the FCA concluded – based on the content of the email and the altercation – that Mr Alom had sent it. His conduct amounted to harassment, which was a potential breach of the FCA’s Equal Opportunities and Respect at Work Policy. It also made various recommendations, including that Mr Alom should not contact AS unless absolutely necessary in a work context, and should not give her any further gifts.

Mr Alom later breached confidentiality by emailing the investigation outcome and recommendations to his line manager and AS’ manager.

A disciplinary process followed, resulting in his dismissal for gross misconduct.

Tribunal decision

Mr Alom brought an Employment Tribunal (ET) claim for unfair dismissal, direct race discrimination, harassment related to race and victimisation. The ET dismissed his claims, finding that his conduct was the primary reason for dismissal. While he argued that the search of his work emails and computer infringed his Article 8 right to privacy, the tribunal found no reasonable expectation of a right to privacy for documents created or stored on a work device.

Appeal

Mr Alom appealed the ET’s decision, arguing that his dismissal was procedurally unfair for the following reasons:

• He was not given a full transcript of interviews conducted during the investigation and therefore could not fully respond to the allegations
• A script, prepared by HR and used during the disciplinary hearing, suggested a decision had been pre-determined
• The search of his work computer breached his rights under Article 8
• The ET’s nine-month delay in issuing its written reasons rendered the decision unsafe.

The EAT dismissed the appeal and made the following findings:

• Fairness requires that an employee is given “sufficient information” to respond to the allegations. In this case, Mr Alom had received sufficient information; as such, he did not require a full transcript of all interviews. In addition, the dismissing officer was not provided with the interview transcripts, meaning they could not have influenced the decision
• While the use of a script was questionable, the EAT was satisfied that the dismissing officer reached an independent decision. The script was, in fact, more of an agenda outlining key points than a directive. As a result, the EAT rejected the claim that the use of the script rendered the process unfair
• Even if the computer search amounted to a disproportionate interference with Mr Alom’s Article 8 rights, the FCA did not rely on its findings when establishing its allegations. Therefore, the search did not affect the fairness of the dismissal
• Although the ET’s delay in providing its written reasons was excessive, it did not lead to any error in the judgment, which was meticulous, thorough and closely reasoned overall.

The EAT concluded that the disciplinary process, while not perfect, was conducted in line with relevant policies and procedures, and therefore Mr Alom had been fairly dismissed.

Key takeaways

The decision shows that not every procedural defect will render a dismissal unfair, particularly if it does not materially affect the outcome. It offers valuable lessons for schools conducting disciplinary processes:

• Implement clear and robust policies on workplace behaviour and relationships which set out the school’s expectations to deter and prevent misunderstanding and misconduct
• Conduct investigations in a timely, thorough and transparent manner to ensure fairness and resolve issues promptly
• Act with caution when using scripts during disciplinary hearings. If prepared internally, these will be disclosable documents in tribunal proceedings. While having an agenda and a possible line of questioning is appropriate, relying on detailed scripts that direct the outcome can undermine the fairness of the process.