J Alom v The Financial Conduct Authority

In assessing dismissal for conduct, fairness requires that the employee receive sufficient information to answer the actual disciplinary charges. Whether witness material must be disclosed depends on the circumstances. A failure to provide material which neither disciplinary nor appeal decision-maker saw or relied on will not, without more, make the dismissal unfair.

An alleged disproportionate interference with Article 8 during an earlier investigation does not render a later dismissal unfair where the employer did not rely on the impugned investigation material for the charges or dismissal. Excessive delay in promulgating a tribunal decision warrants close scrutiny, but vitiates the result only where the decision as a whole creates a real risk of an unfair hearing or adjudication.

The claimant was summarily dismissed for misconduct after the respondent concluded that he had sent an anonymous, threatening email to a colleague and had later breached confidence by disclosing information from the outcome of his own complaint about her. His internal appeal failed.

An Employment Tribunal dismissed his complaints of unfair dismissal, direct race discrimination, race-related harassment and victimisation. He appealed, principally contending that he had not received investigation-interview transcripts, that a search of his work computer infringed Article 8, that an HR hearing script showed prejudgment, and that a nine-month delay in promulgating the Tribunal’s reserved decision rendered the adjudication unfair.

The central question was whether any of those matters disclosed a material error of law or perversity affecting the dismissal or the fairness of the Tribunal proceedings.

1. Appeal dismissed. The Employment Tribunal did not err in dismissing any of the claimant’s complaints.

2. The non-disclosure of transcripts of the complainant’s investigation interviews did not make the dismissal unfair. Fairness required sufficient information to answer the charges, not automatic disclosure of every item generated during a wider investigation. The pursued charges concerned two identified emails. The claimant had the emails, the investigation report and the material said to support the allegation that he authored the first email. He did not renew his request for transcripts once the specific disciplinary charges were notified, and neither the dismissing nor appeal officer saw or relied on them. Any failure expressly to address the argument could not have affected the outcome.

3. The Tribunal’s erroneous finding that the claimant had advance notice of the computer search was immaterial. Even assuming that Operation Orion disproportionately interfered with Article 8, the claimant could not bring that as a free-standing tribunal complaint. The relevant question was whether it affected the fairness of dismissal. The employer did not rely on the computer-search material or wider Operation Orion findings to establish either disciplinary charge or to make the dismissal decision.

4. The HR script contained inappropriately framed proposed questions, but did not compel the conclusion that the dismissing officer had prejudged the case or that HR was the decision-maker. The Tribunal was entitled to accept the officer’s evidence that he reached his own decision after considering the claimant’s representations. The script invited those representations and did not presuppose the outcome.

5. The approximately nine-month delay in promulgation was unacceptable. Applying Bangs, however, the decision had to be assessed as a whole. It was detailed, structured and closely reasoned, and the Tribunal had reached its substantive decision promptly after the merits hearing. The isolated factual errors and omissions did not create a real risk that the claimant had been denied a fair hearing or adjudication.

• Employment Appeal Tribunal: Appeal dismissed: [2025] EAT 138.
• Employment Tribunal: All remaining complaints, including unfair dismissal, direct race discrimination, race-related harassment and victimisation, were dismissed. No citation was stated in the judgment.