A professor of the University of Reading was appointed as per the University's disciplinary procedures to investigate allegations that Dr Dronsfield, an associate professor at the university, had sexual relations with a student with whom he was professionally involved. The investigation report was prepared as a joint report with a HR partner and before the final version of the report was produced, several passages which were favourable to Dr Dronsfield were deleted in response to advice from the HR partner and the University's in-house lawyer. Dr Dronsfield subsequently brought a claim of unfair dismissal in the employment tribunal.
The Employment Tribunal initially held that Dr Dronsfield's dismissal was fair. The Tribunal found nothing improper or biased in the advice given to the investigating professor and it accepted his evidence that he signed off the report in good faith because it accurately represented his conclusions. Dr Dronsfield appealed to the EAT.
In remitting the case back to the Employment Tribunal (on different grounds), the EAT criticised the involvement of HR in the investigative process stating that the preparation of a joint report by HR and a case investigator was "not normal practice" and that he would expect HR to have an "essentially supporting" role.
This case, together with the cases of Ramphal (where it was held that although a dismissing or investigating officer is entitled to seek guidance from HR or others, such advice should be limited to matters of law and procedure and to ensuring that all necessary matters have been addressed and achieve clarity) and Chhabra v West London Mental Health NHS Trust (where it was held that whilst HR or other advisers could assist in the presentation of an investigation report, the report had to be the product of the case investigator) have a significant impact on the role of HR in investigations. Whilst HR still has a critical role to play in the process in advising on questions of law, procedure and process, care must be taken not to stray into areas of culpability.
That said, the judge in the Dronsfield case did state, when commenting on the role of HR, that he had not seen the letter of appointment which set up the original investigation. This comment could imply that if the investigation had been set up with the professor and the HR partner as joint investigators that that might have sanctioned more 'hands-on' involvement by the HR officer in the report. However, this approach would need to concord with any disciplinary procedure in place.
If an organisation has concerns about the approach an investigatory officer is taking when reaching their conclusions, it may be advisable to seek legal advice. Depending on the circumstances, such advice may benefit from the protection of legal privilege. Privilege is, however, a complicated area, so it would be sensible to agree a process for obtaining such advice with your legal advisers.
Dronsfield v University of Reading UKEAT/0200/15/JOJ