No set formula to guide a fair disciplinary process

A recent ruling illustrates why it is often necessary to weigh the merits of different options when it comes to deciding how to manage disciplinary procedures fairly.

Mr Alom was dismissed by the FCA after two incidents of misconduct, including being found to be the author of an anonymous e-mail harassing one of his colleagues.

The employment tribunal dismissed his complaint of unfair dismissal. Other claims were also dismissed. On appeal he argued that his dismissal was unfair because he had not been provided with transcripts of two interviews with the key witness, the employee to whom he had sent the anonymous e-mail.

He also argued that the script prepared by the HR department for the line manager showed that a decision had already been reached on some key issues, without him being given the chance to state his case.

Witness evidence

It is normally best practice to provide the employee being disciplined with transcripts of any interviews with witnesses. It is, however, not necessarily essential for a fair process.

In this case the EAT decided that the employer already had sufficient details of the case he needed to answer. It found that witness transcripts would not have added any information of significance.

In some cases, there may be good reasons for withholding witness statements in whole or in part to protect confidentiality, especially if the witness is potentially vulnerable or where disclosure might put them at risk of retaliatory conduct by the employee under investigation.

However, in most cases to ensure a fair procedure it will be necessary to provide the employee being accused of misconduct with full details of all the evidence against them, subject to suitable safeguards. This should be made clear to witnesses at the outset of the interview and it can be helpful to obtain their consent in advance.

Scripts

The EAT decided that the script provided by HR didn’t indicate that key issues had been pre-judged. But there were certainly some passages that didn’t help the employer’s defence on this point.

While scripts are often used by HR to help a manager to conduct a disciplinary hearing – particularly when they are inexperienced – there are some dangers of a finding of procedural unfairness if they become too prescriptive. However, dispensing with them is not ideal either: where there has been a complex investigation, managers will often need to be reminded of each stage in process they are required to follow.

Further reflexions

We explore the issues raised by this case in more detail in our latest Mills & Reeve podcast which you can access here.