Is it a good idea to use pre-prepared scripts in employee relations matters?

Pre-prepared scripts are often used by managers and HR professionals to assist with structuring meetings with employees and to ensure key points are raised and processes followed consistently. However, as outlined in recent case law, scripts can be a double-edged sword. While they can help ensure consistency and legal compliance in formal procedures, recent tribunal decisions highlight the risks of relying on them too rigidly. In this article we explore the lessons employers can take from those decisions and provide guidance on how to use scripts as a beneficial tool to aid, and not dictate, conversations. 

In Norman -v- Lidl Great Britain Ltd, N brought various claims following a redundancy process in which he was ultimately dismissed (our full summary of the decision here). In its Judgment, the employment tribunal criticised the employer’s redundancy process and concluded that a scripted approach was evidence of a predetermined outcome, contributing to a finding of unfair dismissal. The tribunal stated that the employer was seeking to go through a prescribed script and found it difficult to disagree with the description made on behalf of N that it was a “tick box meeting” to exit him promptly. The criticism was not that a script was used, but that there appeared to be no deviation from it when N was dismissed during a six-minute meeting which was supposedly a consultation meeting, which ought to have involved the exchange of views.  

Conversely, in Alom -v- Financial Conduct Authority, the EAT upheld an employment tribunal’s decision that a disciplinary script did not undermine the fairness of the disciplinary process, provided the decision-maker exercised independent judgment. A had been dismissed for gross misconduct following a disciplinary process and had brought claims including for unfair dismissal. He had appealed the original employment tribunal decision for, amongst other things, the use of a HR prepared script which, due to its contents, he argued indicated that his dismissal was predetermined. It was accepted that the script had been drafted by the member of the HR team supporting the disciplinary process. A’s challenge focussed on two specific sections in the script which he argued amounted to predetermination of the outcome. He further relied on an earlier EAT decision indicating that guidance given by HR to a dismissing officer should be limited to matters of law and procedure. 

The EAT acknowledged the strength of the argument that the way parts of the script were framed were inappropriate, as they appeared to direct the dismissing officer toward a specific view. However, the EAT dismissed A’s contention that the script evidenced premeditation and confirmed that it provided for A’s responses to be invited and that the overall script did not presume any particular outcome of the process. It was satisfied that the dismissing officer had considered all the evidence, including A’s responses during the disciplinary hearing, and had make a decision not based on what was written in the script but on the evidence put before him.

Collectively, these cases offer valuable lessons on when pre-prepared scripts support procedural fairness and when they risk undermining it. We’ve outlined below some key tips to follow when using scripts.

Do:

• Use scripts to ensure consistency in tone, structure, and legal compliance across meetings.

• Allow flexibility for managers to deviate from the script where appropriate, especially to respond to employee concerns.

• Document the decision-making process separately, showing that conclusions were reached independently of any scripted material.

• Train managers on how to use scripts as a guide, reinforcing the importance of genuine consultation and open-mindedness.

Don’t:

• Don’t follow a script too rigidly. As seen in Norman -v- Lidl, this can imply pre-determination and a failure to meaningfully engage with the employee.

• Don’t rely solely on scripted language when delivering decisions. This risks an argument that the process was not impartial and/or was pre-determined. Train managers on how to adapt a script to respond to an employee’s concerns. 

• Don’t ignore responses from employees during meetings; pre-prepared scripts should never override the need for active listening and fair consideration of the employee’s point of view.

• Don’t assume a script will protect against legal risk. As seen in Alom -v- FCA, employment tribunals will consider the substance contained in a script and the reality of what occurred during the meeting to determine whether a fair process has been followed.