The role of HR in disciplinary meetings has long been hotly debated. For many managers, it seems natural to involve HR when addressing underperformance or misconduct issues with staff. Managers, particularly if they are inexperienced, often feel reassured by the presence of HR and take the view that the disciplinary process is more likely to be fair, and therefore not subject to challenge, if HR plays an active role. Managers tend to be cautious in these situations and look to HR for guidance. In many cases, the de facto decision-maker will seek to delegate the decision as to whether or not a disciplinary sanction should be imposed to HR and put pressure on them to put forward a strong opinion.
While involving HR might seem like good practice, the legal position is much more problematic. The involvement of HR in disciplinary decisions can render any subsequent sanction, such as dismissal, unfair. This seems counterintuitive, which is why many managers make the mistake of encouraging HR to involve themselves in disciplinary meetings. We are constantly asked about this, both by managers and HR professionals, despite a steady stream of cases that have addressed this issue.
The case of Mr Ramphal v Department for Transport highlighted just how problematic this area remains for both management and HR, even in very large organisations.
The principal factual issue in this case was the extent to which the decision to dismiss Mr Ramphal was improperly influenced by HR in circumstances where the manager conducting the disciplinary hearing changed his mind from initially believing Ramphal’s explanations for his alleged misconduct were plausible, to later constituting gross misconduct for which he should be dismissed. The EAT upheld Ramphal’s appeal and considered his dismissal unfair on the basis that the HR team at the Department for Transport had gone beyond its remit by getting too involved in the decision-making process.
Importantly, this does not mean that HR can never be the decision-makers in a case. Some smaller businesses rely on HR professionals to conduct investigations and even disciplinary hearings and appeals. The trick is to make sure that the role of HR is clearly defined. If an HR professional conducts the investigation, for example, they should not then go on to advise the manager on the disciplinary hearing or appeal. The procedure should be fair and transparent and the employee must be given the opportunity to put their case to the true decision-maker.
Practical steps for HR
A person facing disciplinary charges and a dismissal procedure is entitled to expect that the decision will be taken by the appropriate person conducting the disciplinary hearing, without having been lobbied by other parties.
HR should therefore keep in mind the following when advising on disciplinary matters:
- It is perfectly legitimate for HR to give advice and guidance relating to legal issues and the procedure that an investigating or disciplinary manager should follow.
- HR is permitted to give advice on the way an investigation report is presented, to ensure it addresses all necessary issues. HR can also make the disciplining officer aware of previous cases involving other individuals in similar circumstances, to ensure consistency.
- If HR is to have a role in deciding on guilt or innocence, or the level of sanction that should be imposed, it needs to be upfront with the employee about this. Problems arise when HR is exerting influence behind the scenes.
- Any advice sought from HR will be disclosable in court. Advice obtained from a solicitor will not be admissible. If advice obtained from lawyers is forwarded internally, legal privilege can be forfeited.
Joanna Sutton is a senior associate at Nockolds