The Role of Human Resources in Disciplinary Proceedings – The risks of crossing the line

A recent Employment Appeal Tribunal decision has provided a reminder of the role of Human Resources in disciplinary proceedings.

In February 2012, Mr Ramphal (the Claimant) was selected at random for an audit of his transport and subsistence claims.  He was informed that some 50 items had been flagged up for examination and he met with his line manager.  The main issue was excessive petrol consumption and possible use of hire cars for personal reasons, which would constitute misuse.  The Claimant was given notice of disciplinary proceedings against him.

Mr Goodchild (a manager) was appointed to carry out the investigation. This was Mr Goodchild’s first disciplinary case.  The Staff Handbook made it clear that persons conducting investigations and disciplinary proceedings should consult Human Resources. Following the investigation, Mr Ramphal was summarily dismissed for gross misconduct.  This decision was also taken by Mr Goodchild – something not to be encouraged but which wasn’t at issue in the case.

What was at issue was that, having gathered and considered the evidence, Mr Goodchild produced a draft report and recommendations but, before this was sent to Mr Ramphal, at least six revised drafts were exchanged between Mr Goodchild and HR.  By the final version,  factual findings in favour of Mr Ramphal had disappeared and been replaced with critical comments, and the intended finding of misconduct with a final written warning sanction had changed to summary dismissal for gross misconduct.

The Employment Tribunal decided the dismissal was fair because there was nothing wrong with Mr Goodchild seeking guidance from HR. Mr Ramphal appealed to the Employment Appeal Tribunal. The key question was whether the decision to dismiss was improperly influenced by Human Resources personnel.

The EAT found that the Tribunal’s decision could not stand.  HR had strayed into advising on Mr Ramphal’s culpability and his credibility.  According to the EAT, 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 should be given notice of representations made by others to the Dismissing Officer that go beyond legal advice/ advice on matters of process and procedure.

Part of the issue in this case was Mr Goodchild’s inexperience.  It is essential to ensure that those appointed to conduct disciplinary investigations have the necessary training to perform their duties and understand their responsibilities.  HR also need to be careful to ensure that they do not cross the line from advising on process and procedure to advising on what the responsible officer should decide as to what happened and what the sanction should be.

For more information about how we can help ensure managers have the skills and ability to undertake disciplinary processes without asking for more than HR can give, please contact a member of the Employment Team.

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