Employees charged with the responsibility of managing a disciplinary process will usually be performing a function which is not a routine part of their working duties. It is therefore likely to fall upon an HR adviser to ensure that the investigator and decision maker have the support necessary to ensure that a fair procedure is followed, and decisions are made in consideration of all the relevant factors. A clear separation of roles is key to ensure a fair disciplinary process, so where should the lines be drawn in terms of HR involvement?
How can HR assist with disciplinary investigations?
The investigating officer should take on responsibility for investigating matters and providing an investigation report. The HR adviser's role is to ensure that the investigating officer is aware of the steps that are necessary to ensure that a fair and thorough investigation takes place (e.g. identifying and interviewing appropriate witnesses, gathering documentary evidence). Although HR could help a case investigator with the preparation of an investigation report, any findings in fact or recommendations should come from the investigating officer.
How can HR assist disciplinary hearers?
It is fundamental that the disciplinary hearer understands how to properly discharge their function - and the HR adviser has a crucial role to play in ensuring that clear understanding.
- Disciplinary hearers should know what their role is prior to engaging in the process. They should be fully briefed on the relevant legal tests and workplace policies which should be considered as part of the disciplinary process.
- Knowledge of the factors which indicate that misconduct is serious enough to amount to gross misconduct will be important, as will an understanding of what sanctions are available, and the considerations that will be relevant to the application of these sanctions. HR can also make disciplinary hearers aware of previous cases involving similar facts to help ensure consistency.
- Appeal hearers should be aware of how their role may differ from that of the initial disciplinary hearer, and particularly, that they may have the ability to cure certain defects that exist following the initial hearing.
4 key points
Although the HR adviser can assist with disciplinary investigations and hearings, it is important that they are not too heavily involved in the disciplinary process. If they are, this may result in the disciplinary decision being viewed as unfair.
- The HR adviser should be careful not to cross the line from advice and support to influencing or making disciplinary decisions (both on culpability and sanctions). The employee must be able to put their case to the person making the decision. HR's role should usually be limited to helping with questions of law, procedure and process.
- Whilst an HR adviser may have a role to play to assist hearers with the structure and preparation of outcome letters, the final letter must reflect the thought processes and beliefs of the disciplinary hearer – it will be the hearer who has to give evidence on their decision if matters progress to a tribunal hearing so they need to be 100% comfortable with the written outcome. The same principle applies in relation to HR's involvement with the investigating officer's report.
- Discussions between investigating officers / disciplinary hearers and HR advisers are likely to be disclosable by means of a subject access request or as part of disclosure obligations during tribunal litigation.
- HR personnel can attend disciplinary hearings in a supporting role, or potentially in a note taking capacity. However, as noted above, the important point is that the HR adviser does not make or directly influence the decisions. It should be made clear to the employee what HR's role is in the process.