In the case of Alom v The Financial Conduct Authority, the claimant argued that the disciplining manager’s use of a script during the disciplinary hearing rendered his dismissal unfair.
Background
Following what was quite a convoluted series of events, the claimant was summarily dismissed from his role with the Financial Conduct Authority for gross misconduct. This related to the sending of two emails. The first was sent anonymously to a colleague, Ms Shaukat, and, despite the claimant’s denial, was found to have been sent by him. Its content was found by the employer to amount to harassment. The second was sent by the claimant to his and Ms Shaukat’s line managers and its content was found to be a breach of confidentiality.
During the course of the disciplinary procedure, Ms Shaukat had been interviewed on a number of occasions. Her initial complaint had been wide-ranging, but only the issue relating to the two emails proceeded to a hearing. The claimant was provided with an investigation report but not the transcripts of the investigation interviews. The claimant’s computer had also been searched; however, none of what was found was relied upon at the disciplinary hearing. The disciplinary officer followed a script at the disciplinary hearing.
The Employment Tribunal dismissed the claimant’s claims of race discrimination, harassment, victimisation and unfair dismissal. The claimant then appealed to the Employment Appeal Tribunal (EAT). The EAT rejected arguments that the failure to provide transcripts and the search of the computer should have led the Employment Tribunal to find the dismissal unfair.
The disciplinary script
The claimant’s complaint about the script was specific to two paragraphs. The paragraphs appeared to contain conclusions that one email was “unpleasant” and that a response by the claimant had been “evasive”. The EAT found that the Tribunal had not been bound to regard the paragraphs in question as showing that the matter had been prejudged. The overall script did not presume any particular outcome.
Comment
Scripts can be a valuable tool in disciplinary proceedings but they must be used carefully. While they can help safeguard fairness and consistency, they should not stifle open discussion. It is also important that they do not include conclusions on material parts of the matter being considered. Over-reliance on a script risks preventing the disciplinary manager from asking appropriate follow-up questions or exploring mitigating factors. Scripts should generally only be used as a framework to follow, allowing a manager to be flexible and to adapt to what is said at the hearing itself.
