Best practices for handling workplace misconduct

Employee misconduct is a serious concern for employers. It is important to ensure that, once allegations arise, employers conduct a reasonable investigation and follow a fair disciplinary process.

A recently decided case, fortunately for the employer concerned, found that despite clear flaws in the disciplinary process, the resulting dismissal for misconduct was not procedurally unfair. However, the case offers several points of caution for employers seeking to conduct a procedurally fair dismissal.

The case: Alom v Financial Conduct Authority

In the relevant case, the claimant, following a disciplinary hearing, was dismissed for misconduct.

The alleged misconduct related to an anonymous, hostile email sent to a colleague. Upon receipt, the claimant’s colleague reported this email to the HR department along with further concerns. Although the claimant denied authoring this email, the employer’s investigation concluded that he did and that his actions towards his colleague constituted harassment.

After receiving a copy of the investigation report, the claimant sent a further email to both his own manager and his colleague’s manager. The email referred to the outcome of his complaint against his colleague, and its attachments included one of the report’s recommendations, the disclosure of which was found to breach confidentiality.

The claimant was subsequently dismissed and, in response, brought claims for unfair dismissal, race discrimination and victimisation against his employer.

The Employment Tribunal dismissed all claims brought by the claimant.

The appeal

The claimant, thereafter, appealed to the Employment Appeal Tribunal (“EAT”). It was argued that the decision to dismiss him was based on a procedurally unfair investigation and that the tribunal had erred in not finding this to be the case.

The claimant provided the following examples of unfairness and were dealt with by the EAT as follows:

1. The claimant was not provided with copies of the two investigation interviews that took place between his employer and colleague.

The EAT noted that the ACAS Code provides that employees are to be provided with ‘sufficient’ information about the alleged conduct to enable them to respond to the charges.

Further, the ACAS Code provides that ‘’normally [it will] be appropriate to provide copies of any written evidence, which may include witness statements’.

Crucially, the EAT determined that whether this bar is met will be case-specific. In this instance, given the specific disciplinary charges, the materials already provided, the claimant’s failure to request transcripts during the disciplinary process, and the fact that neither the disciplining nor the appeal officer relied on those documents, the ground was unsuccessful.

2. The claimant contended that, in searching his work emails and computer, dubbed Operation Orion, his employer had infringed on his Article 8 Right to Respect for Private and Family Life

Again, the EAT determined that this did not render the dismissal procedure unfair.

Of note, the employer had a policy that permitted potential monitoring. Despite this, the claimant contended that the search carried out was too wide and amounted to an infringement on his right to privacy.

Ultimately, it was decided that, as the decision to dismiss the claimant did not rely upon any aspect of the wider investigations or conclusions of Operation Orion, the claimant’s appeal ground could not succeed as the error was not material to the decision.

3. The claimant contended that HR prepared a ‘script’ for the disciplinary hearing

In respect of this ground, the EAT viewed the ‘script’ to be akin, instead, to a meeting agenda. The EAT did note that some parts of the ‘script’ were inappropriate as they suggested to the line manager the view that should be adopted. Despite this, the EAT viewed that the line manager remained free to come to his own decision. Consequently, the ‘script’ did not pre-dispose the outcome.

Thus, although the claimant was concerned that this point had not been properly considered by the Employment Tribunal, it was clear to the EAT that it had not been overlooked and, in any event, did not prove that the decision to dismiss the claimant was a foregone conclusion.

Implications for employers

Although the claimant’s unfair dismissal claim and subsequent appeal were unsuccessful, the case highlights areas where employers should exercise caution. Actions such as trawling employees’ work computers or emails, preparing scripts for disciplinary hearings, creating documents that could suggest a predetermined decision or third party influence, or withholding certain investigation materials can all raise concerns about procedural fairness, depending on the circumstances.

If you have any questions about how to conduct a fair dismissal procedure and investigation and/or how to draft a compliant workplace policy addressing the same, please do contact a member of our Employment team.