EAT upholds FCA’s dismissal of employee accused of sending harassing email
The EAT confirmed that the FCA acted fairly in dismissing an employee for misconduct and that a lengthy delay in the tribunal’s written reasons did not undermine the fairness of the hearing.
Background
In Alom v Financial Conduct Authority, the claimant was summarily dismissed for misconduct. The central allegation was that he authored an anonymous email to a colleague that was considered harassing in tone and content. The second allegation related to an alleged breach of confidentiality when he emailed managers referring to the confidential investigation outcome from his complaint against the complainant. The tribunal rejected complaints of unfair dismissal, direct race discrimination, harassment related to race, and victimisation, including in relation to the internal appeal.
On appeal, the claimant argued that he should have been given transcripts of the investigation interviews with the complainant, that the dismissing officer had prejudged the matter by using a “script” prepared by HR, that a search of his work computer breached his Article 8 rights, and that a nine-month delay in promulgating the tribunal’s written reasons rendered the decision unsafe.
Decision
The EAT dismissed the appeal. It held that the absence of interview transcripts did not render the process unfair because the disciplinary case was confined to two emails, both of which had been disclosed to the claimant along with the investigation report setting out the evidence relied upon which had arisen from the interview Additionally, the dismissing officer did not receive a copy of the transcript, nor rely on them when making a decision. The HR “script” did not show prejudgment: the tribunal was entitled to accept that the dismissing officer made his own decision after hearing the claimant’s representations.
The search of the claimant’s work computer did not vitiate the dismissal, as the employer did not rely on the results to establish the disciplinary charges. Finally, although the tribunal’s delay in issuing its written reasons was excessive, the EAT found that the decision remained detailed, coherent and fair. The findings on misconduct and the rejection of the discrimination and victimisation claims were therefore upheld.
Learning points for employers
This case underlines the importance of keeping disciplinary charges clearly defined and ensuring employees have the information they need to understand and respond to those charges. HR scripts should be limited to procedural guidance, with the chair taking responsibility for the outcome after hearing all representations. Any IT monitoring or searches should be proportionate and clearly justified by policy, and the evidence relied upon should be confined to what is necessary for the charges in issue. A well-structured investigation report that clearly explains its reasoning will support the fairness of the process.