The first instalment in our blog series looking at how to deal with disciplinary proceedings. Does the HR team exert too much influence on the eventual outcome of a disciplinary process?
There’s nothing we hate more than being the bearers of bad news, especially when it comes to telling employers who’ve dismissed blatantly guilty employees that they’re exposed to potentially valid unfair dismissal claims. However, we often are and so it makes sense for us to set out the main reasons why in the hope that we don’t have to hold the receiver away from our ears for fear of deafness as much in future. We’ll do this in a series of blog posts over the course of the next couple of weeks, covering a different reason in each post. Of course, if you’re an employer and would like to discuss any of the issues touched on in these posts, please contact one of our HR consultants in confidence and without delay for some initial advice free of charge and without obligation.
First up is the HR team exerting too much influence on the eventual outcome of a disciplinary process. We all know that managers assigned decision-making roles will frequently refer to HR for support and guidance. However, this should only ever be in terms of law and procedure. Once it strays into areas of culpability then it risks compromising their independence and impartiality.
By way of an example, the case of Ramphal v Department for Transport involved allegations of misconduct in relation to expense claims and use of hire cars. The manager acting as Disciplining Officer was inexperienced in such matters and, during the course of preparing his report and making a decision, received advice from the Company’s HR Department. The evidence showed that the advice he was given was not limited to matters of law, procedure and consistency, but extended to issues of the Claimant’s credibility and level of culpability. The Claimant was summarily dismissed and subsequently submitted a claim for unfair dismissal. His claim was dismissed by the Tribunal.
An appeal was lodged based on the belief that the Employment Judge had adopted an unacceptably generous approach to the advice and guidance supplied by HR. Relying on the Supreme Court decision in West London Mental Health NHS Trust v Chhabra, the EAT determined that the Judge had not properly considered an inference that the HR department had inappropriately lobbied the Disciplining Officer as to the culpability of the Claimant and the appropriate sanction to impose.
The EAT found that there was evidence to support “an inference of improper influence and the Employment Judge should have given clear and cogent reasons for accepting there was no such influence“. Accordingly, the appeal was allowed and the case was remitted to the original Employment Tribunal for rehearing.
In the judgment, HHJ Serota provided the following explanation “an employee facing disciplinary charges and a dismissal procedure is entitled to assume that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability…..and also given notice of representations made by others to the Dismissing Officer that go beyond legal advice, and advice on matter of process and procedure.”
In Dronsfield v University of Reading, a university professor was summarily dismissed for breaching the university’s policy on personal relationships between staff / students for not notifying the university that he was engaged in a personal relationship with a student and therefore depriving it of the opportunity to take steps to prevent any bias in the assessment of that student.
The Claimant lodged an unfair dismissal claim and although the employment tribunal originally found the dismissal to be fair, this was overturned by the EAT on the basis that the final version of a report produced during the disciplinary investigation omitted various findings in favour of the Claimant and that these omissions were due to the involvement of HR and the in-house legal teams. Despite the Investigating Officer signing off the report, the EAT felt that objectivity had been compromised and that the Tribunal had failed to examine why the author had altered his findings to the Claimant’s detriment.
Cheryl Moolenschot, Litigation Consultant at EML comments:
“Although HR and legal teams routinely provide in-depth guidance and support to staff members who are required to undertake disciplinary investigations and hearings, recent case law confirms that any input that goes further than this must be justifiable in the event that the outcome of the disciplinary process is challenged.”
Look out for our next post, which will deal with dismissals following a series of disciplinary warnings.