Posted by Malcolm Gregory, Partner
Can influence from HR affect the fairness of a dismissal?
Businesses with HR teams will often lean heavily on HR to assist during a disciplinary process; that’s HR’s job, right? Not necessarily.
In a recent case there was an analysis on what is ‘fair’ for HR to do or say in a disciplinary process. In particular, to what extent can HR advise or influence the recommendation of an investigating officer or disciplinary chair?
Mr Ramphal was employed by the Department for Transport (DFT). The DFT alleged possible misconduct in relation to his expenses. An investigation was carried out by Mr Goodchild, an employee who was inexperienced in disciplinary processes. As a result – and perhaps as you might expect – he consulted with DFT’s HR team about what he could do.
Acting as both the investigatory and the disciplinary officer, Mr Goodchild sent the first draft of his report to HR. Although his report was partly critical, he recommended a finding of misconduct and a final warning as he accepted the employee’s explanations on many of the allegations. However, over the course of the next six (yes, six) months, HR and Mr Goodchild exchanged various drafts of the report. The HR team replaced favourable findings of fact with critical comments. The final report recommended summary dismissal for gross misconduct. Mr Ramphal bought a claim for unfair dismissal.
Employment Tribunal (ET) decision
The Employment Tribunal initially concluded that the decision was based upon a reasonable investigation and that the decision to dismiss was within the band of reasonable responses – the legal test for misconduct dismissals. The judge held that the decision was ultimately made by Mr Goodchild, and that he did not appear to be “much influenced” by the input of HR.
Employment Appeal Tribunal (EAT) decision
However, the EAT said that the ET judge got it wrong. It could not be a reasonable investigation and outcome as there was clear law that HR’s advice should be limited essentially to matters of law and procedure, as opposed to questions of culpability, which are reserved for the investigating officer. Here the change in Mr Goodchild’s approach was so striking the EAT felt that HR had clearly been involved in issues of culpability – and therefore it had exercised improper influence over Mr Goodchild’s decision.
What does this mean for employers?
This case serves to show exactly how much involvement and influence HR should have in disciplinary matters. HR’s main function is to advise on process; it should not involve itself in the fact-finding exercise or on the potential sanction, other than to address issues of consistency of disciplinary sanction. Significant influence by HR in the outcome of an investigation could potentially compromise the fairness of the investigation process and result in an unfair dismissal.
There is another factor to bear in mind: often legal advice will be sought by employers; this is acceptable, as long as ‘legal privilege’ is retained. But it is very important that such advice is communicated appropriately to the disciplinary manager – if necessarily directly by the lawyer – as otherwise it is possible that legal privilege will be lost, potentially with similar adverse consequences for the business.
If you would like to discuss this issue, or any other employment law matter, please get in touch with our specialist Employment & HR team.
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