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HR’s Role in the Disciplinary Procedure
A few cases have recently considered the role of HR in disciplinary proceedings, and the recent case ofRamphal v Department for Transport gives employers some guidance on how far it is appropriate for HR to become involved in disciplinary proceedings.
This can often become an issue for employers who do not have sufficient numbers of independent managers who can handle disciplinary proceedings, and the responsibility will often fall on HR personnel. An independent manager will always be preferable as an investigating or disciplinary officer, but where that is not possible, the following should be considered.
If you intend to instigate disciplinary proceedings in accordance with your disciplinary procedure, then an investigating officer should first of all be appointed to deal with the investigation.
The investigating officer should be independent, and should be allowed to come to a decision as to whether or not the subject of the investigation has a case to answer based on the evidence obtained during the investigation.
The investigating officer would not have the power to dismiss an employee at this stage of the process, so we would consider it reasonable for a member of the HR team to carry out an investigation. There is very little risk involved at this point.
A new independent person would need to be appointed to act as the disciplining officer if the investigating officer finds that the employee has a case to answer based on the evidence available.
The disciplining officer should ideally be more senior that the investigating officer, and have the ability to make decisions on the relevant sanction, should this be necessary.
Ramphal v Department for Transport
In the recent case of Ramphal v Department for Transport, the Employment Appeal Tribunal (EAT) had to consider whether the involvement of HR caused a dismissal to have been unfair.
Mr Goodchild was appointed to act as the investigating officer, and he also handled the disciplinary hearing. One point to note here is that best practice would be to have different independent officers for the investigation and disciplinary hearing. Mr Goodchild had not dealt with disciplinary proceedings in this way before, and sought guidance from HR on the disciplinary procedure, the difference between misconduct and gross misconduct, and the appropriate penalties.
Mr Goodchild wrote a report following the disciplinary hearing, recommending a finding of misconduct, and the sanction of a final written warning.
There were then six months of communications between Mr Goodchild and HR, leading to Mr Goodchild changing his view on the findings and recommendations. HR had suggested amendments to the report, removed comments favourable to Mr Ramphal to replace them with critical comments, and recommended dismissal for gross misconduct, instead of a final warning.
The EAT set aside the decision of the Employment Tribunal that the dismissal was a fair one. They confirmed that the report of an investigating officer in disciplinary proceedings should be the product of their own investigations. It was clear that HR had involved themselves in issues relating to culpability, which should have been left to Mr Goodchild.
The sudden change of Mr Goodchild’s decision was seen to be “disturbing” and gave an inference that HR had an improper influence on the outcome.
It is important that HR is available so that an investigating or disciplining officer can ask for advice. However, the advice given by HR should be limited to questions of law, procedure and process, and they should not involve themselves with issues of culpability.
HR should not advise on what the outcome of a disciplinary hearing should be, or the level of sanction that should be imposed. Any significant influence by HR on the outcome of a disciplinary situation could affect the fairness of the procedure, and result in an unfair dismissal.
If you intend to use members of the HR team to carry out disciplinary investigations and disciplinary hearings, you should make sure that they are aware of their role as an investigating or disciplinary officer. When they are acting as such, they should not consider themselves in a HR capacity, but as an independent person carrying out an investigation or disciplinary hearing in respect of that specific situation.
If you allow HR to provide guidance to investigating or disciplining officers, they should be made aware that they cannot have any influence on the outcome, and should only advise on the law, process, and procedure.
Anthony Fox, Employment Partner, Napthens LLP – QCS Expert Employment Law Contributor