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

Written on 26 Sep 2016

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 here) 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.