A recent Employment Appeal Tribunal has placed the spotlight on
“scripts” written for disciplinary hearing managers, and
other aspects of procedural fairness including how much information
from an investigation must be shared with employees.
This recent EAT decision will feel familiar to many employers:
how far can HR go in helping managers prepare without unfairly
steering the outcome; when do privacy rights bite on work-device
searches; and how much evidence must be disclosed to the employee?
The judgment is a helpful reminder of the basics—identify the
allegations with care, ensure the decision maker and employee see
the same core material, avoid the appearance of prejudgment, and
keep HR’s role to law and process, not conclusions. It’s a
practical reminder that small procedural missteps won’t
necessarily sink a dismissal, but straying from these fundamentals
might.
How did we get here?
The Claimant was employed by the FCA and fell out with a female
colleague. After an argument in the canteen, the colleague received
an anonymous email which contained harassing and threatening
language. The colleague reported the email to HR and investigations
began with the Claimant also making his own counter grievances.
Following an investigation, it was determined that on balance, the
anonymous email was sent by the Claimant. This was the first
disciplinary charge against the Claimant.
Post investigation, the Claimant sent a further email to his and
the colleague’s line managers. This email referred to a
recommendation made in the investigation outcome report into a
complaint the Claimant had made against his colleague. This
disclosure to other staff by the Claimant was a potential breach of
confidentiality and formed the second disciplinary charge.
A disciplinary hearing found the Claimant guilty of gross
misconduct for sending the anonymous email and of (ordinary)
misconduct for breaching confidentiality on the second charge. He
was summarily dismissed.
What did the Employment Tribunal find?
The Claimant brought claims of unfair dismissal, race
discrimination and victimisation against the FCA. The Employment
Tribunal dismissed all of his claims having found that the reason
for his dismissal was his own conduct. In respect of the unfair
dismissal claim, the ET held that it was reasonable for the FCA to
have come to the conclusion that the Claimant had sent the
anonymous email (on the balance of probabilities) despite his
denials. Whilst there had been some small errors in the
disciplinary process, this was not enough to render it unfair.
The Claimant appealed to the EAT arguing that it should have
found his dismissal was procedurally unfair.
What did the EAT decide?
The Claimant had a number of grounds of appeal.
Predetermined decision
The Claimant argued that a “script” written by HR for
the disciplinary manager to use at the disciplinary hearing was
evidence that the outcome of the disciplinary process had been
prejudged and went beyond the guidance that HR should give, which
should be limited to matters of law and procedure. He argued that
an employee is entitled to expect that the decision is made by the
decision maker alone.
The overall structure and content of the “script” was
by way of an agenda, setting out an order of speaking, and points
that needed to be mentioned, or raised, at different stages by each
of them. The Claimant did not complain about the general content or
structure, but about two particular passages which suggested a view
the disciplinary manager should put forward as to the
interpretation of the offending emails.
The EAT recognised that there was force to the Claimant’s
argument, stating that it was “inappropriate” for the
script to express a particular view of the emails that the decision
maker should put forward. However, this was not sufficient for the
Tribunal to be bound to conclude that the outcome was
predetermined. The script provided for the Claimant’s responses
to be invited and did not presume the outcome of the process. The
witness evidence showed that the disciplinary manager had come to
his own view.
Failure to provide a copy of investigation
transcripts
The Claimant argued that he was not provided with copies of the
transcripts of the two investigation interviews that were held with
his colleague. However, the EAT reminded itself that the ACAS Code
requires employee to be provided with
sufficient information about the alleged
conduct to enable them to respond. Case law shows that the
specifics of what the employee should be given will depend on the
facts.
The EAT considered the transcripts to be unnecessary because the
disciplinary charges solely related to the sending of the first
email and the second email. The Claimant had been provided with a
copy of the emails and had a copy of the investigation report
identifying the evidence which had been used to identify him as the
sender. It also summarised what his colleague had said about the
email. A further finding was that neither the dismissing officer or
appeal officer had seen the transcripts or relied upon them. This
meant they did not have any material the claimant had not also
seen.
Right to privacy
The Claimant made a further argument that a search of his work
computer breached his Article 8 right to privacy. The EAT concluded
that even if the search had been a disproportionate infraction,
this was not a free-standing complaint. The ET was rightly only
concerned with whether this impacted the fairness of the dismissal.
The FCA had not relied upon any aspect of the wider investigations
(including the computer searches) to support the disciplinary
charges or decision to dismiss him so the computer search could not
taint the dismissal.
Postscript: effect of the ET’s delay
Whilst the hearing took place in May 2023, the parties did not
receive the judgement until February 2024, a delay of 9 months. The
ET judge himself noted that it had taken far too long to produce
the judgment but explained that this was due to several serious
personal matters.
The Claimant argued that there was a real risk of him not
receiving a fair trial and this was supported by a number of
mistakes in the judgment. There were references to one witness
giving evidence remotely, an incorrect factual finding and
references to protected disclosures rather than protected acts.
The EAT accepted the delay was unacceptable but after careful
consideration of the ET’s judgment found it to be thorough and
was not concerned by the small errors which would not have changed
the decision.
What can we learn?
External and in house counsel, and HR teams, are often tasked
with preparing “scripts” for various meetings with
employees, including but not limited to disciplinary hearings.
Scripts prepared by the former may sometimes (although by no means
always) be covered by legal advice privilege. Scripts prepared by
the latter will not, and will – as here – generally be
disclosable in the event of litigation. Regardless of the source,
this case is a helpful reminder of the importance of not
overstepping when providing assistance to decision makers. Scripts
should never presume that a particular outcome will be reached,
should present evidence in an impartial manner, and should avoid
appearing one sided by not inviting responses from the employee.
The disciplinary manager must always take ownership and form their
own view of the matter, and not be over reliant on their HR
support.
This case is also a helpful reminder about the importance of
taking the time to properly identify the allegations and resist the
urge to cast the net too wide. The decision maker should generally
have the same evidence as the employee, and if underlying documents
(like investigation transcripts) are going to be withheld from the
employee, the employer should be able to satisfy itself that the
employee still has sufficient information to properly understand
and respond to the disciplinary allegations against them. The
decision maker should not be influenced by or rely on material that
the employee has not had the opportunity to address.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
