The Employment Appeal Tribunal issued a judgment recently in the case of Mr J Alom v The Financial Conduct Authority in relation to an unfair dismissal claim. The EAT judgment touches on two issues that we see come up a lot during the disciplinary process: investigation/ disciplinary hearing transcripts and meeting ‘scripts’ drafted by HR personnel. Interview Transcripts It is common that investigation interviews with witnesses to a disciplinary issue are either recorded or there is a notetaker present. This is important for both sides so there is no ambiguity about what was said at any particular meeting. ACAS states that any decision to record should be agreed by all parties. In Mr Alom’s case, he argued that his dismissal was unfair because he was never given copies of the transcripts of two investigation interviews with Ms Shaukat, a witness to the disciplinary issue. Mr Alom said this meant he did not have full disclosure or a fair opportunity to defend himself as he did not have the full remit of the evidence against him. However, the disciplinary charges against Mr Alom were limited to allegations about two particular emails (one anonymous and one breaching confidentiality). Mr Alom had sufficient information to respond to those allegations without the interview transcripts, the two emails were provided and the FCA believed that was all he would need to respond to the allegations. The dismissing and appeal officers did not have or rely on those transcripts either; they relied on the investigation report instead. The EAT held that failing to supply the interview transcripts was not a procedural flaw serious enough to render the dismissal unfair because Mr Alom knew the case he had to meet and was able to defend himself. The emails were self-explanatory and Mr Alom knew the full remit of the allegations from the emails without interview transcripts. This does not give free reign to not provide employees subject to a disciplinary procedure with the relevant evidence, that is not what this case is stating. The employee has to have enough material to understand the full case against him/her and that may not include all witness evidence but this should be decided on a case by case basis. We would suggest to err on the side of caution, particularly where the employee has 2-years continuous service and can claim unfair dismissal. Meeting Scripts Companies with HR personnel often will prepare meeting agendas or scripts to support their managers who carry out disciplinary investigations or hearings. Often, it is quite important to have that support from HR as managers need to know broadly what they are allowed to say and what they are not. It also helps confidence for inexperienced managers doing their first disciplinaries. However, the HR-prepared script in Mr Alom’s case flirted with the line. Mr Alom claimed that the HR-prepared “script” for the disciplinary officer (Mr McLean) showed the process was predetermined and that HR improperly influenced the decision. The script included lines such as: “ I’ve read the email of 23 January – it was one of the most unpleasant emails I’ve read… I concur with Natasha’s assessment that its tone and language are aggressive and threatening .” Although in the end, the EAT decided that Mr McLean the disciplinary officer had reached his own decision despite the HR script getting close to the line of prescribing an outcome. The key part to remember is that the disciplinary officer should be able to come to his own independent decision, it would not be fair for the decision to be fixed by an HR person and then to utilise the disciplinary officer as a proxy for that decision. In Conclusion Neither the absence of interview transcripts nor the existence of the HR script rendered the dismissal unfair. Both were seen as minor procedural imperfections that did not undermine the fairness or integrity of the disciplinary process, however, they showed clearly where the Tribunal draws the line on providing investigation material and HR scripts. As always, this advice is general in nature and will need to be tailored to any one situation. As an RMI member you have access to the RMI Legal advice line, as well as several industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate. Motor Industry Legal Services Motor Industry Legal Services provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only regulated law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.