There have been several recent employment cases about HR professionals overstepping the mark during disciplinary hearings. HR professionals need to be aware of the potential for unfair dismissal claims if they do not take a step back and think carefully about the limits of their role.
The recent case of Ramphal v the Department for Transport highlights the importance of HR understanding the boundaries. The case concerned a security compliance inspector who was dismissed for gross misconduct following several disciplinary meetings.
The investigating officer revised his report from a first draft, which was favourable towards Mr Ramphal, to further drafts which were increasingly critical of him. The revisions to the report occurred after communications between the investigating officer and HR. Mr Ramphal claimed that he had been dismissed unfairly as a result and took his case to the Employment Tribunal who found against him.
The Employment Appeal Tribunal, however, found in Mr Ramphal’s favour and concluded that HR had influenced the investigating officer’s conclusions regarding the level of misconduct and the appropriate sanction that should be applied.
In giving his judgment, His Honour Daniel Serota QC said “In my opinion, an investigating officer is entitled to call for advice from HR, but HR 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.”
Hints and Guidance
This case makes it clear that HR professionals need to be careful in the advice that they give to their investigating officers. In order to ensure that HR do not stray beyond their remit in disciplinary procedures, here are some tips:
- Ensure that the same officer does not carry out both the investigation and the disciplinary hearing, especially in a medium or large organisation where this can be easily avoided;
- Limit the advice given to the investigating officer to answering questions of law, procedure and process;
- Avoid commenting on areas of culpability;
- Do not advise the investigating officer on the appropriate sanction(s) which should be applied;
- Ensure that any report (including drafts) produced by the investigating officer is as a result of their own investigations and conclusions;
- Work on the basis that all advice, unless created for the purpose of legal advice, will be disclosable;
- Keep HR’s involvement in the disciplinary process clear and transparent at all times;
- Stick to the ACAS Code of Practice on Disciplinary and Grievance Procedures.
If you or a colleague would like further insight into how not to handle disciplinary issues, the Employment Team at Hodge Jones & Allen are hosting an evening of dramatic workplace scenarios and networking on Tuesday 11 October 2016.