I have been asked about the role of HR in disciplinary processes on several occasions recently. Questions put to me are should HR be able to make decisions on the outcome of a disciplinary process? Is there a risk that the dismissal might be unfair if HR is involved?
A key case that considers the role of HR in disciplinary proceedings is Ramphal v Department for Transport . Mr Ramphal’s employer, the Department for Transport conducted an investigation into potential misconduct by Mr Ramphal in relation to expenses and his use of hire cars. Mr Goodchild, a manager, was appointed to carry out the investigation, and to act as the dismissing officer, if necessary.
During the course of preparing his report, Mr Goodchild received advice from the Department for Transport’s Human Resources department. In his original draft report, he made a number of findings that were favourable to Mr Ramphal including some critical ones. He considered that Mr Ramphal’s misuse of the company credit card was not deliberate and that he had given reasonable explanations for his actions. He wrote that he found Mr Ramphal guilty of misconduct rather than gross misconduct and that the appropriate sanction should be a final written warning rather than dismissal without notice. Following the drafting of the initial report, Mr Goodchild had further discussions with HR and subsequent drafts of the report became more critical of Mr Ramphal’s actions. The final report found him guilty of gross misconduct and the decision was made to dismiss Mr Ramphal.
Mr Ramphal pursued a claim of unfair dismissal against the Department for Transport which was unsuccessful. The Judge found that Mr Goodchild had reached the decision to dismiss himself. Mr Ramphal appealed on the basis that HR had inappropriately influenced Mr Goodchild’s decision. The Employment Appeal Tribunal found that the original Employment Judge had failed to explain what it was that persuaded the manager to change his views so radically. Human Resources appeared to have sought to persuade Mr Goodchild take a more critical view of Mr Ramphal’s conduct and reject his explanations for certain expenditure. The EAT held that an employee facing disciplinary charges is entitled to expect that the decision will be taken by the manager, without having been lobbied by other parties as to the findings he should make as to guilt.
This case demonstrates the issues that can arise with the involvement of HR and is a scenario where HR have improperly influenced the outcome of the disciplinary process.
Points to consider for disciplinary managers:
You are making the decision and you need to be comfortable with it and be able to explain the reasons for your decision. If a claim is brought against the employer, you may be required to give evidence at a final hearing.
If you are signing off a letter written by someone other than yourself, such as HR, make sure you are happy with the contents of the letter, and that it is your own view and that you understand everything. Ensure that the wording of the letter is how you would write the letter. Don’t be afraid to query anything you are unclear on before signing the letter.
Keep a careful note of who you talked to before coming to a decision.
Points to consider for HR professionals:
Make sure the decision maker has reached their own view on the outcome and the appropriate sanction if a decision is made that the employee is guilty of misconduct or gross misconduct.
Ideally offer more than one option when giving advice so that the disciplinary manager is making the decision and understands all of the options.
Advise about any disciplinary sanctions in broad terms by giving all of the available sanctions. You might want to provide advice on the sanctions that have been given in previous scenarios as comparators and what mitigating factors might be when considering the different sanctions.
If HR are going to prepare the decision letter for the manager, it is sensible to have a note of the manager’s conclusions and sanction (if applicable) prior to the letter being prepared as evidence that they decided the outcome rather than HR.
Employers should be mindful that all correspondence and notes passed between a disciplinary manager and HR will usually be required to be disclosed in any employment tribunal proceedings or by way of a subject access request made by an employee.
If you require any advice on disciplinary proceedings, whether you are an employer, HR professional, or employee, please contact Farleys’ employment team on 0845 287 0939 or email us today.