Employers need a fair reason to dismiss an employee and must follow a reasonable and fair procedure. If the procedure is flawed, it can lead to a claim for unfair dismissal. However, a recent Employment Appeal Tribunal (EAT) case highlighted that a flawed procedure is not automatically unfair, and in this case, the dismissal was not unfair (Alom v Financial Conduct Authority [2025]).
The Facts
Following a workplace disagreement between Mr Alom (A) and a female colleague, A allegedly sent her an anonymous but abusive email at work. The employer considered this to be harassment. An inspection was carried out on A’s computer to verify if it was sent by him. Although no record was found, the employer concluded, based on the nature of the argument and the wording of the email, that he had sent it. The employer commenced disciplinary proceedings, after which A was dismissed.
A argued that the dismissal was unfair because:
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He was not provided with a transcript of the investigation notes from interviews with the female colleague.
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A ‘script’ prepared by the HR Department for the line manager conducting the meeting indicated that the line manager was not the decision-maker.
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The dismissal was pre-determined.
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The search of A’s computer was a breach of his right to privacy under the European Convention on Human Rights.
The Decision
The EAT referred to the ACAS Code of Practice, which states it would “normally be appropriate to provide copies of any written evidence, which may include witness statements.” They ruled that such disclosure was “not an absolute requirement,” and non-disclosure in this instance did not make the process unfair.
The EAT found that the employer had not relied on anything in the witness evidence; they relied purely on the contents of the email. They also noted that the materials provided to the line manager conducting the hearing did not include interview transcripts, and therefore could not have been relied upon in reaching the decision.
As for breaching his privacy rights, A argued that the employer’s search went beyond seeking to establish whether he had sent the email — they looked for details about the nature of his relationship with the female colleague. Although there was some merit in this argument, the EAT felt that the report resulting from the computer search was not relied upon in the decision to dismiss. Therefore, it could not affect the fairness of the dismissal. The dismissal was ruled to be fair.
Comments
It is important to note that although the EAT said non-disclosure was not an absolute right, each case must be assessed on its own merits to determine whether the employee was in some way prejudiced. Here, the employer relied entirely on the wording of the email, and it was reasonable to conclude that A had sent it. However, employers should always consider and follow the ACAS Code and, when using statements, supply them to the employee so that they understand the nature and extent of the allegations and are given a fair opportunity to respond.
Although the HR Department may assist a manager in conducting a meeting, having a ‘script’ may be detrimental to employers, as it suggests a pre-determined decision or that someone else is making the decision. In this case, the EAT ruled that the ‘script’ was more of an agenda of items to be covered. However, it was acknowledged that several sentences in the script suggested advice was being given about the seriousness of the conduct. Employers should head these notes as “agenda” and not include incriminating statements or language that could be interpreted as conclusions. The manager should decide based on the evidence before them and their own observations.
Employers are reminded to follow their own procedures thoroughly and refer to the ACAS Code when handling disciplinary hearings. Having robust policies and procedures will help, but employers should also be mindful of excessive or disproportionate interference with an employee’s privacy rights. There should be a clear understanding of what employers are looking for, why they are looking, and where they looked — so they can explain their actions as reasonable and proportionate.
The Quest HR Helpline is available at 01445 852 028, and employers are advised to call the service to obtain initial advice and guidance to ensure they do not fall foul of complex laws.
