UK disciplinary hearings: recent guidance from the EAT

A recent decision by the UK Employment Appeal Tribunal ("EAT") has held that the dismissal of an employee for misconduct was not unfair despite apparent shortcomings in the process followed (Alom v Financial Conduct Authority [2025] EAT 138).

Although the employer was successful, the case provides some points of caution for employers to consider, particularly in terms of how much documentation to provide to an employee who is the subject of a disciplinary process and how best to prepare line managers to chair disciplinary meetings. 

The facts of the case

The case involved a workplace argument between Mr Alom and a female colleague which culminated in Mr Alom allegedly sending his colleague an abusive email which was found to amount to harassment. The email was sent on an anonymous basis, and so a review of Mr Alom's work emails was carried out to see if there was evidence showing that he had sent it. 

The forensic review did not confirm who sent the email, but, based on its content and the recent argument, the employer concluded Mr Alom had sent it. A disciplinary process was undertaken, which resulted in his dismissal.

The basis for the claim

Mr Alom argued his dismissal was procedurally unfair for the following reasons:

• He was not provided with a transcript of the investigative interviews that had taken place with the colleague who accused him of sending the hostile email.
• A 'script' prepared by HR for the line manager at the disciplinary hearing indicated that the line manager was not the true decision maker and that dismissal was a foregone conclusion.
• The search of Mr Alom's work computer was a breach of his right to privacy under the European Convention on Human Rights ("ECHR").

The decision

Failure to provide interview transcripts

The EAT referred to the ACAS Code of Practice on Disciplinary and Grievance Procedures which states that it would 'normally be appropriate to provide copies of any written evidence, which may include witness statements'.

The court said that it was not an absolute requirement and, here, they found it did not make the process unfair for two main reasons. First, the employer had not relied on anything in the witness evidence; they relied solely on the content of the email itself. Secondly, the materials provided to the disciplinary hearing manager did not include the interview transcripts and so they could not have been relied on in reaching the decision to dismiss.

The EAT's comment that there is no absolute obligation to provide interview transcripts in every case is a helpful one for employers, however, this was a highly fact specific example. The employer was relying only on the abusive content of the email itself and the court found it was reasonable of them to have concluded that it had been sent by Mr Alom. Employers should always bear in mind and follow the ACAS Code. In most cases, in addition to documentary evidence, employers will be relying on evidence received from witnesses interviewed during an investigation process. To the extent they are doing that, the subject of the process needs to understand the basis for the case against them. 

The use of 'scripts' in disciplinary hearings

It is obviously not uncommon for HR to assist a line manager in preparing for a disciplinary hearing but the suggestion that there is a 'script' is always going to be unhelpful. In the EAT's view, the role of HR is restricted to advising on process and the law; they should not be seen to be influencing the line manager's decision. 

Here, the script, was in fact more of an agenda of points for the line manager to cover in the hearing ('agenda' would have been a much better title). There were nonetheless two places in the document where it appeared HR was telling the line manager what to conclude:

• "I've read the [alleged abusive] email – it was one of the most unpleasant emails I've read.[The investigator] said in [the investigation report] that its tone and language are aggressive and threatening and create an intimidating and hostile environment which is clearly unwanted. I concur with this."
• "Your response to [X's] email was evasive."

Ultimately, the EAT rejected Mr Alom's argument that these passages indicated a pre-ordained conclusion to the disciplinary process, influenced by HR. Based on the evidence given by the line manager at the tribunal hearing, they were satisfied that he had not already made his mind up and that the decision was made by him and not HR. The court did however acknowledge that there was force in the argument and employers should be cautious about the content of similar 'scripts' in light of this finding, and stick to an 'agenda' style, without apparent conclusions along the lines of the above.

The search of the work computer

The employer's IT policy made all staff aware that their use of company systems was monitored, however Mr Alom argued that the search carried out here was a disproportionate interference with his privacy rights. That was on the basis that the search went beyond seeking to establish whether Mr Alom sent the email in question; it had trawled more widely with a view to establishing the nature of the relationship between Mr Alom and the colleague with whom he had argued.

The EAT seemed to accept the force of this argument but they found it to be a moot point because, crucially, the report which resulted from the search of the computer was not relied upon in the decision to dismiss. It therefore could not affect the fairness of the dismissal. 

So, again, while the employer succeeded on this point, it is a reminder for employers to take care when carrying out forensic investigations of employees' work computers. The existence of a robust IT policy is a helpful starting point but that will not justify a disproportionate interference with an employee's privacy rights. The scope of what is being looked for (and what is not) should be clearly understood and documented so that the employer can explain what it searched for, and why that was relevant and proportionate to the issue under investigation.