Important guidance on the limits of HR assistance in disciplinary proceedings

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Summary: A recent EAT decision gives important guidance on the limits of HR assistance in disciplinary proceedings. In particular, it is inappropriate for HR to influence the disciplinary officer’s decision as to issues of culpability.

In Ramphal v Department for Transport the EAT confirmed that a disciplining officer may seek guidance or advice from HR, but that it is inappropriate for HR to influence the disciplinary officer’s decision as to issues of culpability.

The claimant was subject to a formal disciplinary investigation regarding alleged misconduct relating to his expenses. Mr Goodchild, the disciplinary officer (who, unusually, was also the investigator), produced a draft investigation report which found that the claimant had committed misconduct. His report recommended a final warning. HR discussed the report extensively with Mr Goodchild and made a number of recommendations as to its conclusions regarding the claimant’s culpability and the appropriate sanction. As a result, the final report was completely different from the initial draft; favourable findings were replaced by critical findings and the recommendation became a finding of gross negligence, resulting in summary dismissal.

When does HR involvement become inappropriate?

The Employment Tribunal dismissed the employee's claim that he had been unfairly dismissed. On appeal, the EAT set aside the Tribunal's decision. There was a clear inference of inappropriate influence by HR. The Tribunal had given no clear or cogent reason for accepting that there had been no undue influence by HR. The EAT confirmed that whilst it is not wrong for advice and guidance to be sought from HR, the final decision should have been taken by the disciplining officer. In this case there was clear evidence that HR went beyond providing advice on questions of law, procedure and process, and had instead strayed into ‘lobbying’ Mr Goodchild as to the appropriate outcome. This called into question the fairness of the process.

What this means for employers

Although it may be difficult to determine when advice becomes ‘lobbying’, those in HR should still be able to challenge the robustness and cogency of a disciplining officer’s findings and provide advice on the scope of investigations and the consistency of a proposed sanction. However, HR should take care not to stray into attempting to influence the disciplining officer’s decision. Employers may therefore wish to remind HR of the limits of their role in this area.

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