Employers faced with disciplining a senior employee, or those with small workforces, may wish to use an external adviser for part of the disciplinary process. A recent EAT ruling highlights the importance of ensuring that there is clarity over the scope of the third party’s role and whether that party is to make the final decision or simply provide a recommendation to the employer.
In Kisoka v Ratnpinyotip (t/a Rydevale Day Nursery) the EAT ruled that it was not unfair for an employer to overrule the decision of an independent appeal panel, where the employer’s investigation and the decision to dismiss had been reasonable in the circumstances, and there were no terms of engagement between the employer and the panel binding the employer to implement the panel’s decision. It was also relevant that it was a small employer, with no obligation to outsource the appeal in the first place.
In GM Packaging v Haslem the EAT accepted that it was reasonable for a small employer to delegate a disciplinary investigation to external HR consultants. Where their recommendations to dismiss were accepted, the reason for dismissal was held to be the set of facts/beliefs in the mind of the consultants.