08 October 2015

Tribunal limits extent to which HR can advise in disciplinary proceedings, including decisions to dismiss

Employers should ensure Human Resources (HR) personnel do not comment on issues such as credibility and culpability when supporting managers who are conducting investigations, making decisions to dismiss and other disciplinary functions.

In a recent case, a manager was appointed to investigate alleged misconduct by an employee in relation to expenses and use of hire cars. Initial drafts of his report showed he accepted the employee's explanation. However, the employer's HR department subsequently became involved, commenting on issues such as the employee's credibility. The manager's final report was radically more critical, and the employee was eventually dismissed. The employee claimed unfair dismissal.

The Employment Appeal Tribunal (EAT) ruled that an employee in disciplinary proceedings is entitled to expect that decisions about issues such as credibility and culpability will be decided by the person appointed to conduct the investigation, without being 'lobbied' on such issues by anyone else, whether within or outside the organisation.

The EAT said a dismissing or investigating officer could seek guidance (eg from HR), but only on matters of law and procedure, and to ensure "all necessary matters have been addressed and achieve clarity". It also said employees should be given notice of any changes in the case against them so they can deal with them.

The matter was remitted back to the Employment Tribunal.

Recommendation

Employers should ensure HR personnel do not comment on issues such as credibility and culpability, but restrict themselves to advice on law, procedure and appropriate sanctions, when supporting managers who are conducting investigations, making decisions to dismiss and other disciplinary functions. There are also benefits in obtaining external legal advice on disciplinary and grievance procedures as an important point is that the advice would be protected by legal privilege.

Case law:

Ramphal v Department for Transport UKEAT/0352/14/DA

If you wish to discuss this topic further, please contact Head of Employment Ian Dawson on 0113 297 7735 or at idawson@shulmans.co.uk.