This recent EAT decision will feel familiar to many employers: how far can HR go in helping managers prepare without unfairly steering the outcome; when do privacy rights bite on work-device searches; and how much evidence must be disclosed to the employee? The judgment is a helpful reminder of the basics—identify the allegations with care, ensure the decision maker and employee see the same core material, avoid the appearance of prejudgment, and keep HR’s role to law and process, not conclusions. It’s a practical reminder that small procedural missteps won’t necessarily sink a dismissal, but straying from these fundamentals might.
How did we get here?
The Claimant was employed by the FCA and fell out with a female colleague. After an argument in the canteen, the colleague received an anonymous email which contained harassing and threatening language. The colleague reported the email to HR and investigations began with the Claimant also making his own counter grievances. Following an investigation, it was determined that on balance, the anonymous email was sent by the Claimant. This was the first disciplinary charge against the Claimant.
Post investigation, the Claimant sent a further email to his and the colleague’s line managers. This email referred to a recommendation made in the investigation outcome report into a complaint the Claimant had made against his colleague. This disclosure to other staff by the Claimant was a potential breach of confidentiality and formed the second disciplinary charge.
A disciplinary hearing found the Claimant guilty of gross misconduct for sending the anonymous email and of (ordinary) misconduct for breaching confidentiality on the second charge. He was summarily dismissed.
What did the Employment Tribunal find?
The Claimant brought claims of unfair dismissal, race discrimination and victimisation against the FCA. The Employment Tribunal dismissed all of his claims having found that the reason for his dismissal was his own conduct. In respect of the unfair dismissal claim, the ET held that it was reasonable for the FCA to have come to the conclusion that the Claimant had sent the anonymous email (on the balance of probabilities) despite his denials. Whilst there had been some small errors in the disciplinary process, this was not enough to render it unfair.
The Claimant appealed to the EAT arguing that it should have found his dismissal was procedurally unfair.
What did the EAT decide?
The Claimant had a number of grounds of appeal.
Predetermined decision
The Claimant argued that a “script” written by HR for the disciplinary manager to use at the disciplinary hearing was evidence that the outcome of the disciplinary process had been prejudged and went beyond the guidance that HR should give, which should be limited to matters of law and procedure. He argued that an employee is entitled to expect that the decision is made by the decision maker alone.
The overall structure and content of the “script” was by way of an agenda, setting out an order of speaking, and points that needed to be mentioned, or raised, at different stages by each of them. The Claimant did not complain about the general content or structure, but about two particular passages which suggested a view the disciplinary manager should put forward as to the interpretation of the offending emails.
The EAT recognised that there was force to the Claimant’s argument, stating that it was “inappropriate” for the script to express a particular view of the emails that the decision maker should put forward. However, this was not sufficient for the Tribunal to be bound to conclude that the outcome was predetermined. The script provided for the Claimant’s responses to be invited and did not presume the outcome of the process. The witness evidence showed that the disciplinary manager had come to his own view.
Failure to provide a copy of investigation transcripts
The Claimant argued that he was not provided with copies of the transcripts of the two investigation interviews that were held with his colleague. However, the EAT reminded itself that the ACAS Code requires employee to be provided with sufficient information about the alleged conduct to enable them to respond. Case law shows that the specifics of what the employee should be given will depend on the facts.
The EAT considered the transcripts to be unnecessary because the disciplinary charges solely related to the sending of the first email and the second email. The Claimant had been provided with a copy of the emails and had a copy of the investigation report identifying the evidence which had been used to identify him as the sender. It also summarised what his colleague had said about the email. A further finding was that neither the dismissing officer or appeal officer had seen the transcripts or relied upon them. This meant they did not have any material the claimant had not also seen.
Right to privacy
The Claimant made a further argument that a search of his work computer breached his Article 8 right to privacy. The EAT concluded that even if the search had been a disproportionate infraction, this was not a free-standing complaint. The ET was rightly only concerned with whether this impacted the fairness of the dismissal. The FCA had not relied upon any aspect of the wider investigations (including the computer searches) to support the disciplinary charges or decision to dismiss him so the computer search could not taint the dismissal.
Postscript: effect of the ET’s delay
Whilst the hearing took place in May 2023, the parties did not receive the judgement until February 2024, a delay of 9 months. The ET judge himself noted that it had taken far too long to produce the judgment but explained that this was due to several serious personal matters.
The Claimant argued that there was a real risk of him not receiving a fair trial and this was supported by a number of mistakes in the judgment. There were references to one witness giving evidence remotely, an incorrect factual finding and references to protected disclosures rather than protected acts.
The EAT accepted the delay was unacceptable but after careful consideration of the ET’s judgment found it to be thorough and was not concerned by the small errors which would not have changed the decision.
What can we learn?
External and in house counsel, and HR teams, are often tasked with preparing “scripts” for various meetings with employees, including but not limited to disciplinary hearings. Scripts prepared by the former may sometimes (although by no means always) be covered by legal advice privilege. Scripts prepared by the latter will not, and will – as here – generally be disclosable in the event of litigation. Regardless of the source, this case is a helpful reminder of the importance of not overstepping when providing assistance to decision makers. Scripts should never presume that a particular outcome will be reached, should present evidence in an impartial manner, and should avoid appearing one sided by not inviting responses from the employee. The disciplinary manager must always take ownership and form their own view of the matter, and not be over reliant on their HR support.
This case is also a helpful reminder about the importance of taking the time to properly identify the allegations and resist the urge to cast the net too wide. The decision maker should generally have the same evidence as the employee, and if underlying documents (like investigation transcripts) are going to be withheld from the employee, the employer should be able to satisfy itself that the employee still has sufficient information to properly understand and respond to the disciplinary allegations against them. The decision maker should not be influenced by or rely on material that the employee has not had the opportunity to address.