{"id":266325,"date":"2025-10-07T08:19:11","date_gmt":"2025-10-07T08:19:11","guid":{"rendered":"https:\/\/dominiclevent.com\/blog\/?p=266325"},"modified":"2025-10-07T08:19:11","modified_gmt":"2025-10-07T08:19:11","slug":"scripting-a-hearing-how-careful-should-you-be-employment-litigation-tribunals","status":"publish","type":"post","link":"https:\/\/dominiclevent.com\/blog\/scripting-a-hearing-how-careful-should-you-be-employment-litigation-tribunals\/","title":{"rendered":"“Scripting” A Hearing: How Careful Should You Be? – Employment Litigation\/ Tribunals"},"content":{"rendered":"\n
\n

A recent Employment Appeal Tribunal has placed the spotlight on
\n“scripts” written for disciplinary hearing managers, and
\nother aspects of procedural fairness including how much information
\nfrom an investigation must be shared with employees.<\/p>\n

This recent EAT decision will feel familiar to many employers:
\nhow far can HR go in helping managers prepare without unfairly
\nsteering the outcome; when do privacy rights bite on work-device
\nsearches; and how much evidence must be disclosed to the employee?
\nThe judgment is a helpful reminder of the basics\u2014identify the
\nallegations with care, ensure the decision maker and employee see
\nthe same core material, avoid the appearance of prejudgment, and
\nkeep HR’s role to law and process, not conclusions. It’s a
\npractical reminder that small procedural missteps won’t
\nnecessarily sink a dismissal, but straying from these fundamentals
\nmight.<\/p>\n

How did we get here?<\/h3>\n

The Claimant was employed by the FCA and fell out with a female
\ncolleague. After an argument in the canteen, the colleague received
\nan anonymous email which contained harassing and threatening
\nlanguage. The colleague reported the email to HR and investigations
\nbegan with the Claimant also making his own counter grievances.
\nFollowing an investigation, it was determined that on balance, the
\nanonymous email was sent by the Claimant. This was the first
\ndisciplinary charge against the Claimant.<\/p>\n

Post investigation, the Claimant sent a further email to his and
\nthe colleague’s line managers. This email referred to a
\nrecommendation made in the investigation outcome report into a
\ncomplaint the Claimant had made against his colleague. This
\ndisclosure to other staff by the Claimant was a potential breach of
\nconfidentiality and formed the second disciplinary charge.<\/p>\n

A disciplinary hearing found the Claimant guilty of gross
\nmisconduct for sending the anonymous email and of (ordinary)
\nmisconduct for breaching confidentiality on the second charge. He
\nwas summarily dismissed.<\/p>\n

What did the Employment Tribunal find?<\/h3>\n

The Claimant brought claims of unfair dismissal, race
\ndiscrimination and victimisation against the FCA. The Employment
\nTribunal dismissed all of his claims having found that the reason
\nfor his dismissal was his own conduct. In respect of the unfair
\ndismissal claim, the ET held that it was reasonable for the FCA to
\nhave come to the conclusion that the Claimant had sent the
\nanonymous email (on the balance of probabilities) despite his
\ndenials. Whilst there had been some small errors in the
\ndisciplinary process, this was not enough to render it unfair.<\/p>\n

The Claimant appealed to the EAT arguing that it should have
\nfound his dismissal was procedurally unfair.<\/p>\n

What did the EAT decide?<\/h3>\n

The Claimant had a number of grounds of appeal.<\/p>\n

Predetermined decision<\/em><\/p>\n

The Claimant argued that a “script” written by HR for
\nthe disciplinary manager to use at the disciplinary hearing was
\nevidence that the outcome of the disciplinary process had been
\nprejudged and went beyond the guidance that HR should give, which
\nshould be limited to matters of law and procedure. He argued that
\nan employee is entitled to expect that the decision is made by the
\ndecision maker alone.<\/p>\n

The overall structure and content of the “script” was
\nby way of an agenda, setting out an order of speaking, and points
\nthat needed to be mentioned, or raised, at different stages by each
\nof them. The Claimant did not complain about the general content or
\nstructure, but about two particular passages which suggested a view
\nthe disciplinary manager should put forward as to the
\ninterpretation of the offending emails.<\/p>\n

The EAT recognised that there was force to the Claimant’s
\nargument, stating that it was “inappropriate” for the
\nscript to express a particular view of the emails that the decision
\nmaker should put forward. However, this was not sufficient for the
\nTribunal to be bound to conclude that the outcome was
\npredetermined. The script provided for the Claimant’s responses
\nto be invited and did not presume the outcome of the process. The
\nwitness evidence showed that the disciplinary manager had come to
\nhis own view.<\/p>\n

Failure to provide a copy of investigation
\ntranscripts<\/em><\/p>\n

The Claimant argued that he was not provided with copies of the
\ntranscripts of the two investigation interviews that were held with
\nhis colleague. However, the EAT reminded itself that the ACAS Code
\nrequires employee to be provided with
\nsufficient<\/strong><\/em> information about the alleged
\nconduct to enable them to respond. Case law shows that the
\nspecifics of what the employee should be given will depend on the
\nfacts.<\/p>\n

The EAT considered the transcripts to be unnecessary because the
\ndisciplinary charges solely related to the sending of the first
\nemail and the second email. The Claimant had been provided with a
\ncopy of the emails and had a copy of the investigation report
\nidentifying the evidence which had been used to identify him as the
\nsender. It also summarised what his colleague had said about the
\nemail. A further finding was that neither the dismissing officer or
\nappeal officer had seen the transcripts or relied upon them. This
\nmeant they did not have any material the claimant had not also
\nseen.<\/p>\n

Right to privacy<\/em><\/p>\n

The Claimant made a further argument that a search of his work
\ncomputer breached his Article 8 right to privacy. The EAT concluded
\nthat even if the search had been a disproportionate infraction,
\nthis was not a free-standing complaint. The ET was rightly only
\nconcerned with whether this impacted the fairness of the dismissal.
\nThe FCA had not relied upon any aspect of the wider investigations
\n(including the computer searches) to support the disciplinary
\ncharges or decision to dismiss him so the computer search could not
\ntaint the dismissal.<\/p>\n

Postscript: effect of the ET’s delay<\/h3>\n

Whilst the hearing took place in May 2023, the parties did not
\nreceive the judgement until February 2024, a delay of 9 months. The
\nET judge himself noted that it had taken far too long to produce
\nthe judgment but explained that this was due to several serious
\npersonal matters.<\/p>\n

The Claimant argued that there was a real risk of him not
\nreceiving a fair trial and this was supported by a number of
\nmistakes in the judgment. There were references to one witness
\ngiving evidence remotely, an incorrect factual finding and
\nreferences to protected disclosures rather than protected acts.<\/p>\n

The EAT accepted the delay was unacceptable but after careful
\nconsideration of the ET’s judgment found it to be thorough and
\nwas not concerned by the small errors which would not have changed
\nthe decision.<\/p>\n

What can we learn?<\/h3>\n

External and in house counsel, and HR teams, are often tasked
\nwith preparing “scripts” for various meetings with
\nemployees, including but not limited to disciplinary hearings.
\nScripts prepared by the former may sometimes (although by no means
\nalways) be covered by legal advice privilege. Scripts prepared by
\nthe latter will not, and will \u2013 as here \u2013 generally be
\ndisclosable in the event of litigation. Regardless of the source,
\nthis case is a helpful reminder of the importance of not
\noverstepping when providing assistance to decision makers. Scripts
\nshould never presume that a particular outcome will be reached,
\nshould present evidence in an impartial manner, and should avoid
\nappearing one sided by not inviting responses from the employee.
\nThe disciplinary manager must always take ownership and form their
\nown view of the matter, and not be over reliant on their HR
\nsupport.<\/p>\n

This case is also a helpful reminder about the importance of
\ntaking the time to properly identify the allegations and resist the
\nurge to cast the net too wide. The decision maker should generally
\nhave the same evidence as the employee, and if underlying documents
\n(like investigation transcripts) are going to be withheld from the
\nemployee, the employer should be able to satisfy itself that the
\nemployee still has sufficient information to properly understand
\nand respond to the disciplinary allegations against them. The
\ndecision maker should not be influenced by or rely on material that
\nthe employee has not had the opportunity to address.<\/p>\n

The content of this article is intended to provide a general
\nguide to the subject matter. Specialist advice should be sought
\nabout your specific circumstances.<\/em><\/p>\n<\/div>\n\n

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