In Alom v Financial Conduct Authority, the Employment Appeal Tribunal considered the extent to which a script prepared by HR can demonstrate a pre-judged disciplinary outcome, and the level of evidence which must be provided to an employee in a fair process. In addition, the EAT considered the circumstances in which delays in issuing a Tribunal judgment and errors within that judgment can be grounds to overturn a decision.

What happened in this case?

Mr Alom was employed by the Financial Conduct Authority (FCA) and was dismissed in relation to his conduct towards his colleague, Ms Shaukat. Mr Alom and Ms Shaukat had formerly maintained a friendship, however following an altercation in January 2020 at work, Ms Shaukat accused Mr Alom of stalking her. Later that day, Ms Shaukat received an anonymous email which contained, among other matters, specific comments regarding her having made allegations of stalking against the sender and about a course that she had recently commenced (on which Mr Alom had previously congratulated her). Ms Shaukat raised the matter with HR, as well as other concerns regarding Mr Alom’s conduct towards her, and Mr Alom also made a complaint about Ms Shaukat. Upon receiving the results of the investigation into his complaint against her, Mr Alom emailed Ms Shaukat’s manager referencing the recommendations made.      

Following a disciplinary investigation, it was determined that Mr Alom was likely to have been the sender of the anonymous email (which he denied) and that the email sent to Ms Shaukat’s manager had been a breach of confidentiality. As a result, Mr Alom was dismissed for gross misconduct, and this outcome was upheld on appeal.

Mr Alom brought a number of claims in the Employment Tribunal against Ms Shaukat and the FCA, however following several applications and rounds of case management, Ms Shaukat was removed as a respondent and the claims were narrowed to direct sex discrimination, direct race discrimination, harassment based on race and/or sex, victimisation and unfair dismissal.

Under a reserved judgment issued on 16 February 2024, the Tribunal concluded that none of Mr Alom’s claims should succeed. In summary, it determined that none of the FCA’s actions had been motivated by Mr Alom’s race or his sex, and the dismissal had been for the potentially fair reason of conduct, was within the range of reasonable responses and had followed a fair procedure.

What was decided?

Mr Alom appealed to the Employment Appeal Tribunal on several grounds, each of which was addressed by the EAT as follows:

• Mr Alom asserted that the Tribunal’s judgment had erred in relation to whether or not a witness had flown back to the UK to give evidence. The EAT did not agree that this was an error, and considered it clear from the judgment that the witness had planned to fly to the UK but, following the withdrawal by Mr Alom of all but one of the claims which concerned her conduct, it had been recorded by the Tribunal that she would no longer do so. The consequences of her not attending (with regard to cross-examination) had been explained to Mr Alom and he had withdrawn the only remaining complaint against her. This ground of appeal therefore failed.

• Mr Alom alleged that the Tribunal had erred in making a factual finding that he had been notified by the FCA of the intention to search his computer, and as a result his case that the search had been an infringement of his Article 8 rights (the right to respect for private and family life) rendering the dismissal unfair had been impacted. The EAT noted that it could not consider the Article 8 infringement as a standalone issue but only with relevance to the fairness of the dismissal. They determined that the decision to dismiss had not relied on the report which was produced from the computer search, and noted that Mr Alom had actually sought to rely on the report as evidence in support of his case. Even if the search had been a disproportionate interference in Mr Alom’s rights, there was therefore no proper basis to conclude that this made the dismissal unfair. As a result, this ground of appeal also failed.

• Mr Alom asserted that the delay in issuing judgment until February 2024 (following the hearing in May 2023) had led to a real risk that he did not receive a fair trial. He believed that this was compounded by factual inaccuracies in the judgment, including those noted above and a discrepancy as to whether a witness had attended via video link. The EAT acknowledged that the delay had been unacceptably long, but noted that this had been expressly explained in the judgment and that the Tribunal had convened the day after the hearing to deliberate and reach a decision when it was fresh in their minds. The inaccuracies were insubstantial in what was otherwise what they deemed a “meticulous, thorough, and closely-reasoned decision”. This ground of appeal therefore also failed.

• Mr Alom stated that he had not been provided with transcripts of the interviews conducted with Ms Shaukat, which he believed made his dismissal unfair as he did not know the case he was required to answer (with reference to the ACAS Code of Practice on Disciplinary and Grievance Procedures). The EAT concluded that he had still been provided with sufficient information to respond to the charges, which had stemmed solely from the two emails rather than any witness evidence from Ms Shaukat. Whilst it would have been best practice for the Tribunal to address the submission made by Mr Alom that this had made his dismissal unfair, the fact that they had failed to do so did not affect the result given the narrow nature of the disciplinary charges. This ground of appeal therefore also failed.

• Mr Alom claimed that the script prepared by HR for the disciplinary meeting echoed the conclusions drawn by the disciplinary decision-maker, and that this showed the outcome having been pre-judged and therefore unfair. In particular, Mr Alom took issue with the assertion in the script that the anonymous email had been “one of the most unpleasant emails I’ve read,” and considered that the guidance from HR had gone beyond the permitted remit of law and procedure. The EAT considered that the Tribunal, having heard evidence from the disciplinary decision-maker, had been satisfied that he had come to his own view and had done so only after hearing from Mr Alom. This ground of appeal therefore also did not succeed.

The appeal was therefore dismissed by the EAT. A representative for Mr Alom has reportedly confirmed that he intends to appeal this outcome further.

What does this mean for employers?

For employers, the most pertinent takeaway from the Alom case is likely to be the commentary made by the EAT regarding the level of input from HR into the disciplinary script.

Whilst they did not uphold the ground of appeal, the EAT made some notable observations that they could “see the force in the submission that the framing of these particular parts of the script was inappropriate, because they suggested what view Mr McLean should put forward”. This appeared to be particularly relevant to the part of the script that referred to the speaker having read the anonymous email, considered that it was “one of the most unpleasant emails” they had read, that they concurred with the investigation report’s findings that “its tone and language are aggressive and threatening and create an intimidating and hostile environment, that is clearly unwanted”, and that his response to an email querying his involvement had been “evasive”.

This is a helpful reminder of the dangers in relying on prepared scripts for disciplinary matters, and emphasises the need for scripted questions to remain open, impartial and not tailored towards any particular response or outcome. The disciplinary decision-maker must be confident both that they have heard the employee’s input before arriving at a decision, and that the decision reflects their own personal judgment on the matter. The input from HR teams (or indeed from internal or external counsel) should be limited to matters of law and procedure, and employers should be mindful that communications between HR and the disciplinary manager may not always be covered by legal advice or litigation privilege.  

In addition, employers should take note of the issue raised in this case regarding the consent obtained to search Mr Alom’s computer. As the EAT had determined that any breach of Article 8 rights was not pertinent to the fairness of the dismissal, it was not necessary to make a factual finding in relation to whether the search had been permitted or wrongful in any sense. However, counsel for Mr Alom alleged that the FCA’s policy highlighting the possibility of such searches was insufficient to justify this particular exercise, and counsel for the FCA only relied upon the existence of this policy as part of a broader picture of why the search was proportionate (rather than being decisive). Employers should therefore bear in mind that a policy permitting monitoring of company property may not, of itself, mean that all surveillance of an employee’s activity is automatically permissible.

Finally, it is worth noting the EAT’s approach to the evidence that should be provided to employees ahead of a disciplinary meeting. In particular, they focused on the fact that both the decision-maker and Mr Alom had been provided with the same evidence, and that the evidence which Mr Alom claimed had been withheld from him had not led to either of the disciplinary charges. This is a useful reminder for employers that if the decision to dismiss relies on documents which were not provided to the employee, this could have a considerable impact on whether a fair procedure has been followed.

Alom v Financial Conduct Authority  EAT 138

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Rose Lim (RoseLim@bdbf.co.uk) or your usual BDBF contact.