Hi all, I know you’re all itching to get your latest fix of Precept’s weekly blog but before you do, I’d like to take the opportunity to make it about myself and introduce myself as Precept’s latest recruit!
For anybody looking in from the outside, I can confirm that Precept does things… differently… in all the best ways (I promise!) Staying on the topic of myself, for a bit of background, I am of a rare breed of people who genuinely loves employment law and all the whacky situations that come with it.
Having a career in employment law has been my goal since the day I started my law degree and my love for employment law only grew every step of the way (I am sure that Precept will continue that upward trajectory). Now I am a fully fledged solicitor, this is my time to shine in the area that I love so much – so bring on the wild and whacky questions!
I LOVE sports (football, boxing, MMA, F1… you name it), that includes both watching and practicing them (I’d like to think commuting in my Polo up the A52 counts as F1!!) That is enough about me for now, I am sure we will get to know each other even better over the coming weeks and months! Anyway, you must be dying for your legal fix so lights out and away we go!
This week’s topic will be on the case of Alom v Financial Conduct Authority where the Employment Appeal Tribunal (EAT) (the court that hears appeals on legal issues from decisions made by Employment Tribunals) sent out the message that when considering whether a dismissal falls within a reasonable range of responses (and so whether it is fair), this range applies to the procedure as well as the decision itself. In short, this case is a nice reminder that we do not have to be perfect. Reasonable, yes, but not perfection!
In this case, there were issues in the process the company followed in dismissing the employee, yet the ETA ultimately agreed that these were not enough to make the dismissal unfair.
For a bit of background, Mr Alom was dismissed as a result of the following allegations against him:
- That he sent an anonymous email to a colleague that was considered harassing in tone and content; and
- That he breached confidentiality when he emailed managers referring to the confidential investigation outcome from his complaint against the complainant.
Mr Alom was arguing that his dismissal was procedurally unfair because:
- He should have been provided with the transcripts of the investigation interviews,
- the decision to dismiss him was “pre-judged” due to a “script” which was prepared by HR; and,
- the search of his computer breached his Article 8 European Convention on Human Rights Right to Privacy.
So, what did the EAT have to say?
On point 1, the EAT held that the absence of the interview scripts did not make the procedure unfair because the interview transcripts were not relied on when deciding to dismiss. Instead, the investigation relied solely on the contents of the emails. The interview transcripts were not provided to the disciplinary hearing manager either, and so there is no way they could have been relied on in the decision to dismiss Mr Alom.
On point 2, the EAT took the view that using a “script” prepared by HR did not mean that the Company had “pre-judged” the outcome. The EAT found that the script did not propose any outcomes and that the hearing manager came to his own decision based on his own independent view of the matter. This I a relief as we always recommend some form of meeting plan or script!
On point 3, the EAT found that the search of Mr Alom’s computer did not affect the fairness of the dismissal because the Company did not rely on the findings of this search to establish the charges or to dismiss him.
So, what does this mean for you going forward?
- This case emphasises that procedural flaws do not necessarily mean a dismissal is unfair. The key point that swung the decision in the favour of the Company in this case is that where the procedure was flawed, it did not affect the charges or the outcome of the process. When relying on information in the dismissal of an employee, it is important to ensure that every bit of information has been gained through the correct procedure – not that you need reminding of that!
- The EAT commented that there is no obligation for the employer to provide interview transcripts. Although the absence of transcripts may lead to procedural unfairness in some cases, what kept the FCA’s hands clean in this case is that they did not rely on the findings of those interviews when deciding on the dismissal. Being honest, this is pretty unusual and of course it is good practice to keep records of interviews and meetings where the information may be relied upon at a later date, and to also provide these to the employee – once again, not that you need reminding!
- When it comes to HR drafting scripts for managers, try to keep them limited to guidance on procedure only. Ultimately, it is for the chair of the meeting to consider all the facts and come to their own independent decision. The less influence there is from HR and in the script/guidance, the better. As always, we are here if you need a second pair of eyes.
- There is another point re the script – scripts and meeting plans are super useful, so if you want to use a detailed one – get the manager’s input in the drafting of it. That way of the dismissal is challenged, that manager can be very clear on the fact that the script wasn’t drafted “for them” but in collaboration “with them” – see, we always think outside the box!
- In this case, the search of Mr Alom’s laptop was not found to impact the fairness of the procedure. However, to limit any risk, you should limit the monitoring of employee’s computers as much as possible to what is proportionate and necessary. Make sure that if you are monitoring employees in this way, your policies allow for it too.
Whilst this decision shows that procedural errors will not always mean that the dismissal will be unfair, of course, we would always recommend that you stick to a thorough and fair process. It can save you the expense, disruption and time that a tribunal can cause if an employee can see that a proper process has been followed.
If you’re dealing with a difficult disciplinary case, do you know who can help? Precept can! Did you know, our HR specialists can even come in and support with or hold meetings for you! Call us on 01332 866610 or email enquiries@precepthr.com to find out more.
Recent Comments