HR officers must not exceed their role in providing procedural advice and guidance to managers involved in disciplinary matters. Similarly, managers must accept the responsibility to make the investigatory findings and disciplinary decisions without their judgement being improperly influenced. Where the line is crossed and the manager allows their decision on the facts to be compromised by outside influence, a dismissal or other sanction may be automatically unfair as a result.
Background
In the case of Ramphal v Department for Transport, an employee had been accused of misconduct, including misuse of a company hire car and improperly claimed expenses. He offered various explanations for the apparent irregularities, and a manager was appointed to investigate and recommend any disciplinary action if necessary. The manager was inexperienced in handling disciplinary matters, and sought advice from HR, who provided guidance to him on procedure.
The manager initially decided that the employee’s explanations were plausible and he could not be sure that he was not telling the truth. Nevertheless, he considered that the rules had been broken, and therefore his initial conclusion was that a finding of misconduct was warranted, with a resulting sanction of a final written warning.
However, the manager subsequently had discussions with HR, during which it appears that suggestions were made by HR staff about the employee’s credibility, and that they called into question the plausibility of his explanations. There is also a suggestion that HR met with the manager and criticised his reasoning process and the conclusion he had reached on the evidence. The manager later completed his final report, in which he had changed his mind and concluded that the employee was guilty of gross misconduct, and should therefore be summarily dismissed.
The decision
The Employment Appeal Tribunal stated that there appeared to be a disturbing and improper impact on the manager’s decision resulting from the advice of HR. The appeal judge decided that the original Tribunal Judge had not given good enough reasons for deciding there was no improper influence.
Before remitting the matter back to the Tribunal for a that issue to be addressed, the appeal judge gave important guidance on what HR should and, just as importantly, should not do during the disciplinary process:
“an Investigating Officer is entitled to call for advice from Human Resources; but Human Resources must be very careful to limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability, let alone advising on what was the appropriate sanction … It was not for Human Resources to advise whether the finding should be one of simple misconduct or gross misconduct.”
Don’t overstep the mark in disciplinary matters
- When a disciplinary investigation is taking place, the involvement of HR should be limited to providing support to the investigating manager in the form of procedural advice, copies of the disciplinary policy and any other relevant policy, and information about what the possible outcomes and penalties are.
- HR should not lean on the manager to make any particular findings about what actually happened. They can advise the manager on what sanctions are available, but must not tell them which sanction (if any) to actually impose. This is particularly the case when the HR advice comes from an adviser who might not have even attended the disciplinary hearing.
- Conversely, the manager conducting the disciplinary process must take the full responsibility of making the decision and not allow improper influence from anyone else to affect his or her judgment. Having taken advice on the rules and procedure, and familiarised themselves with the disciplinary policy, it is for them alone to consider the evidence and decide what happened and what action to take.
- Advance training for managers likely to be called upon to deal with disciplinary or grievance issues is always to be recommended.
- To the extent that the case against the employee changes or evolves within disciplinary proceedings this must be conveyed to the employee so they are afforded a proper opportunity to address the entirety of any allegations against them. There is a difference between negligently / recklessly mis-claiming expenses and dishonestly / fraudulently doing so, for example.
This case largely concerned issues arising from the disclosure of HR advice. Legal advice is generally privileged and probably would not have been disclosable as the various drafts of the disciplinary outcome letter travelling between the manager and HR were here. Whilst the point re advisers not overstepping their legitimate remit stands, and privilege may fail if being used to mask impropriety, this is an important point to bear in mind if considering whether to take advice from external HR consultants or from a solicitor.
If you believe that your company may require advice on any of the above issues, please contact our Employment department, who will be very happy to discuss your needs / book you an appointment.
We have significant experience in guiding employers or employees through disciplinary proceedings and in representing them within the Employment Tribunal claims which can result.
Whether you are an employer wanting advice on managing litigation risk or an employee looking to avoid dismissal or warning, the earlier advice is sought the greater the likelihood of achieving the desired outcome.
The information set out herein is for general information purposes only and no liability is accepted for any reliance placed upon it, as generic guidance is no substitute for taking specific tailored legal advice.
