Employment Appeal Tribunal decision limits the role of HR in disciplinary proceedings

When a disciplinary matter arises, one of the first people called will be the HR representative. The involvement of HR in disciplinary investigations should be an automatic process – it is HR that provide the guidance and support to managers dealing with difficult disciplinary matters, and HR who ensure a consistent, fair application of the disciplinary procedure.   

Of course, the role taken by HR in disciplinary matters varies from employer to employer, but in recent years, the spotlight has fallen on the role of HR straying into influencing the decision making of those conducting the disciplinary investigation and hearing, with employment tribunals (ETs) expressing disapproval and seeking to set clear limitations on the extent to which HR should be involved in the process. 

What is HR’s role in disciplinary proceedings?

The
Employment Appeal Tribunal (EAT) in the recent case of Dronsfield v University of Reading has again emphasised that the role of HR is to advise on questions of law, procedure and consistency and not to stray into advising on culpability or the sanction to apply. Whilst this sounds like a straightforward division of responsibility, in practice, it is a much more subtle distinction to get right.

In Dronsfield, a Professor (‘G’) at the University of Reading was tasked with the support of an HR representative to investigate the alleged misconduct of a fellow Associate Professor (‘D’) at the university, who had failed to report a sexual relationship with a student. Together they produced an investigatory report, but significantly here, initial drafts were subject to review by the University’s HR department and in-house lawyer. The final version of the report omitted a number of findings that would have been favourable to D, including a passage which concluded that there was no evidence to suggest that his conduct was of an immoral, scandalous or disgraceful nature. This was important as the University statute provided for dismissal for ‘conduct of an immoral scandalous or disgraceful nature incompatible with the duties of the office or employment’. The Vice-Chancellor appointed a disciplinary panel
which, following a hearing, recommended dismissal.

D’s internal appeal was unsuccessful, as was his ET claim for unfair dismissal. However the EAT was troubled – there appeared to be no adequate exploration by the ET as to why G’s original opinion
had been deleted. Had G in fact changed his opinion for some reason? Otherwise, why had the redactions been made? And following on from that, was it reasonable, having regard to the omissions from the final version of the report, for the University to dismiss D? 

The EAT also noted obiter (non-binding) that allocating joint responsibility for producing the report to both the investigating officer and an HR representative, did not reflect normal practice. This accords with the EAT’s findings in the 2015 case of Ramphal v Department of Transport (see our earlier report) where the EAT held that HR’s advice should be limited to matters of law and procedure, as opposed to questions of culpability, which are reserved for the investigating officer.

How to get a disciplinary procedure right

Both this case and Ramphal have raised concerns with HR professionals that their ability to be involved with disciplinary proceedings has been limited. However, the principles established by both cases are not unique to HR and apply equally to anyone seeking to influence disciplinary outcomes when they are not directly responsible for decision making. To avoid undermining the fairness of your disciplinary process, make sure:

• Clear policies are in place setting out the process for disciplinary investigations and hearings, and crucially, who is responsible for making a decision on culpability;
• HR’s involvement is limited to questions of law and procedure as opposed to matters of culpability, the latter being specifically reserved for the investigating officer;
• If multiple drafts of an investigation report are produced, any amendments made can be fully explained by the decision maker. Remember, draft reports are discloseable in tribunal proceedings (unless they can be protected by legal privilege);
• Employees are given the opportunity to make representations to the person who is making the decision on disciplinary action – any influence from parties who the employee has not addressed directly will jeopardise the fairness of the disciplinary action taken.