To act fairly when dismissing employees, it is vital that the focus remains on the treatment of the specific allegations that are being pursued. If these key allegations are handled carefully, then surrounding circumstances or incidental problems will not necessarily render the dismissal unfair.
In Alom v Financial Conduct Authority [2025] the claimant faced numerous allegations; however, the only two allegations pursued regarded two emails that the claimant had sent.
The claimant was dismissed for misconduct after being found to be the author of an anonymous, inappropriate email sent to a female colleague, which amounted to an act of harassment. In addition, the claimant was also found to have sent a second email to his colleague’s manager, which referenced findings from a separate investigation and amounted to a breach of confidence.
Whilst it was these two incidents that were the pursued by the employer and were ultimately the reason for the claimant’s dismissal, the investigation which preceded the disciplinary hearing considered other allegations relating to the harassment of his colleague.
The claimant was dismissed by the FCA for gross misconduct and brought claims of unfair dismissal, direct discrimination and harassment related to race, and victimisation against his employer to the employment tribunal (ET). The claimant’s complaints were all dismissed by the ET, which found that the ultimate reason for his dismissal was his conduct. This led to the claimant appealing to the Employment Appeal Tribunal (EAT) on the basis that his dismissal should have been found to be procedurally unfair. These complaints of procedural unfairness related not only to the e-mails at the heart of the disciplinary case, but also to wider aspects of the initial investigation. He also argued that the employment tribunal’s nine-month delay in sending out the judgement was excessive.
The claimant’s appeal was dismissed by the EAT which found that his dismissal was not procedurally unfair. The EAT highlighted the following points:
- The claimant was not provided with the complainant’s investigation interview transcripts, which the claimant argued meant the dismissal was unfair. The EAT dismissed this point as the disciplinary charges only related to the two emails the claimant sent, both of which he had seen. He understood the case against him and had received a copy of the final investigation report, which explained why he was believed to have sent the offending e-mails.
- The claimant also argued that the script used for the disciplinary hearing was prejudged. The EAT found that the script prepared by HR for the disciplinary hearing did not mean that the decision was pre-judged because no specific outcome was hypothesized and the manager that conducted the hearing reached his own conclusion. The script set out an agenda, running order and a list of points to be discussed, but did not steer the manager hearing the disciplinary case to any particular decision.
- Whilst a search of the claimant’s work computer, in the initial investigation, may potentially have breached his Article 8 right to privacy under the ECHR, the employer did not use the findings from that search to help support the reason to dismiss the claimant. This meant that the search was therefore not relevant to the fairness of the dismissal.
- Finally, while the EAT agreed that the ET’s nine-month delay in sending out the judgement was excessive, there was no suggestion that the Claimant had not received a fair outcome or fair consideration of his complaints. This is always a highly fact-specific assessment, taking into account the overall content and context of the decision. In this case, while the ET’s decision was delayed, it was thorough and well-reasoned, and the claimant’s complaint had been fully considered.
Comment
When looking to dismiss employees, this case is a reminder that whilst an employee may have numerous allegations against them, only those which are relied upon as a reason for dismissal will be relevant when a tribunal is deciding whether an employee’s dismissal is unfair. Whilst following a fair procedure is still a very important requirement, ‘satellite’ errors and problems which do not relate to allegations specifically pursued should not be relevant to the tribunal’s decision on fairness.
Also, When HR advisers are supporting and advising managers conducting disciplinary processes, both at an investigation stage and / or at a hearing, it is important that they do not overreach their support role and influence those responsible for the investigation and decision-making.
Where a script is provided by HR to provide structure and focus in a disciplinary hearing, it is important that managers feel empowered to go ‘off script’ if they need to and are able to confidently explain to an employment tribunal how and why they reached a particular decision. Any suggestion that the disciplinary manager has decided to dismiss under pressure or direction from HR, or has followed a script very narrowly without fully understanding the issues, is likely to result in a finding of unfairness.
This insight is co-authored by Apprentice Solicitor, Maisie Adams. maisie.adams@weightmans.com
