How impartial should HR be?

I was reading up on the Ramphal v Department for Transport case from 2015 and how the Employment Appeal Tribunal (EAT) found that HR had had too much influence on the decision to dismiss an employee. In this case, I was interested to learn that Mr Ramphal had been investigated in relation to alleged misuse of expenses and hire cars.

According to my research, the appointed investigating officer, Mr Goodchild, determined that the misuse was not deliberate upon initial investigation and that Mr Ramphal had provided reasonable justifications for his actions. On that basis, Mr Goodchild was said to have concluded that the matter amounted to misconduct and that a final written warning would be an appropriate sanction. However, Mr Goodchild was inexperienced in terms of handling disciplinary procedures and sought support from HR. Following the intervention by HR, the initial proposed levels of misconduct and sanction rose to that of gross misconduct and dismissal. Mr Ramphal brought his claim to a tribunal and, when unsuccessful, then appealed to the EAT who upheld his claim citing that there was a clear influence from HR to change the findings and the outcome.

Legal Island’s ‘Back to Basics’ series provides a useful overview of this case along with two other similar cases which examine the part that Human Resources play in the role of disciplinary matters. All three cases highlight how the EAT warns that any advice given by HR is ‘limited to questions of law, procedure or process. And fundamentally, that advice given does not stray into areas of culpability, and that's where the issue really arises.’

These cases also demonstrate how the lines between HR and management can become easily blurred. HR are advised to bear in mind that should a manager be cross-examined under oath in a tribunal that they will need to be able to confidently justify that all decisions were their own and not those imposed by HR.

Similarly, further advice urges how careful consideration should be given to any disciplinary letters that are drafted by HR and simply signed off by managers. In these situations, while it is not deemed unreasonable for HR to prepare letters on behalf of managers, it should be just that. In other words, the wording of the letter should be that of the appointed disciplinary manager who should be able to stand over the content. It is advisable in such cases to maintain notes in advance of the letters being composed which summarises the managers findings and decisions on disciplinary levels and sanctions.

In the Taylor & Emmet online blog the author believes that there are grey areas when dealing with disciplinary matters. Here he considers how 'a good HR Business Partner should be permitted to challenge preliminary findings of an inexperienced manager to ensure, at the very least, that all relevant factors (and no irrelevant factors) have been taken into account and that the findings will withstand proper scrutiny. This is materially different to an HR professional actively trying to persuade a manager to change their mind, but arguably goes beyond mere advice on law and procedure’. Another useful reminder to HR practitioners when supporting employee relations issues is that all recorded communication and documentation is discoverable whether to a tribunal or through a Data Protection subject access request which is becoming a more popular request for the savvy employee in advance of raising a complaint.

In conclusion, Personnel Today provides guidance on the role of HR in providing support to line managers.

Firstly they advise that clear disciplinary policies and procedures are in place which provide the right course of action for both parties. Next, ensure that managers have received training on conducting workplace investigations even if that involves rolling out refresher training in advance of a live process. Following this HR should provide support to managers during each stage of the process and ask them to consider relevant issues throughout to ensure they stay on track. Furthermore, any changes in decisions must be documented and be justifiable so as to provide an adequate defence if challenged. Lastly, the article recommends seeking legal advice if needed, particularly in potentially high-risk cases or where employees may be open to ‘without prejudice’ discussions.

What role should HR play in a disciplinary investigation?

Chris Fullerton from Arthur Cox recently answered the question ‘What role should HR play in a disciplinary investigation?’ as part of our First Tuesday Q&A series.