Often when an employee is suspected of misconduct, an employer will commence an investigation prior to initiating any disciplinary process. While it is always advisable for different individuals to carry out the investigation and the disciplinary process, it is not uncommon for the same HR support to be involved in both procedures. Although HR plays an important role in this regard, their advice should be limited to addressing questions of procedure and process and the appropriate level of sanction to achieve consistency. It should not stray into the territory of offering opinions on culpability or guilt.
A stark example of HR going beyond scope is a recent UK decision [Ramphal v Department for Transport EAT/0252/14] where it was held that HR actively intervened in a disciplinary process thereby causing an unfair dismissal.
In this case, an employee was investigated for potential misconduct in relation to his expenses and use of hire cars. A manager was appointed to conduct an investigation and, if necessary, to request a disciplinary meeting. However he was inexperienced in disciplinary proceedings and during the course of preparing his report he received advice from the HR department.
The manager's first draft report contained a number of findings favourable to the employee e.g. he found that the misuse was not deliberate; there was no compelling evidence that his actions were deliberate; and that the explanations given by the employee for petrol expenditure were "plausible". He concluded that the employee should be given a final written warning.
Following advice taken from the HR department, the manager included in his final report findings which differed with those set out in his initial report. It stated that "having given careful consideration to all of the facts of the case, I am minded to conclude that, on the balance of probability, the Claimant is guilty of gross misconduct in respect of both the misuse of the corporate card and the misuse of hire cars funded by the Respondent. My recommendation is that he should be dismissed from his post."
Determining Unfair Dismissal
The EAT considered the extent to which the decision taken by the manager to dismiss the plaintiff may have been improperly influenced by HR. It held that an employee facing disciplinary charges is entitled to assume that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make regarding culpability. It also held that representations made by others to the dismissing officer that go beyond legal advice render both the process and procedure unfair.
While this serves as a useful reminder of the roll of HR, it perhaps also highlights the need to ensure that the person appointed to investigate or chair disciplinary meetings has some training on what is involved.