The role of Human Resources personnel in disciplinary proceedings can vary in nature and scope. HR’s role can range from note taker, advisor on the process or an involvement in the decision making process. But recent cases have provided some guidance on the role of HR.
To establish a fair dismissal on the grounds of conduct, it must be established that, at the time of dismissal:
·The employer believed the employee to be guilty of misconduct;
·The employer had reasonable grounds for believing that the employee was guilty of that misconduct;
·The employer had carried out as much investigation as was reasonable in the circumstances when it formed that belief on those grounds.
It is normal for the investigating officer to consult HR for guidance in the investigating process. However, recent cases have made it clear that any advice given by HR should be limited to questions of law, procedure and process and should not stray into areas of culpability, which are reserved for the investigating officer.
The below case summaries set out the current position and provide some helpful guidelines.
Chhabra v West London Mental Health NHS Trust
In Chhabra v West London Mental Health NHS Trust, the Supreme Court considered the extent to which HR can influence a disciplinary investigation without any decision being regarded as unfair. The principle is summed up in the following paragraph:-
“There would generally be no impropriety in a case investigator seeking advice from an employer’s human resources department, for example on questions of procedure. I do not think that it is illegitimate for an employer, through its human resources department or a similar function, to assist a case investigator in the presentation of a report, for example to ensure that all necessary matters have been addressed and achieve clarity”.
HR's advice should therefore be limited to matters of law and procedure, as opposed to questions of culpability. However, if this remit is exceeded then the fairness of the investigation process could be compromised, which may result in an unfair dismissal as emphasised in the Ramphal decision.
Ramphal v Department for Transport
In this case the investigating officer’s report had originally found misconduct and recommended a sanction of a written warning. However the final report, after numerous comments and amendments by HR, found the employee to have committed gross misconduct, resulting in a recommendation of summary dismissal.
The employee was found to have been fairly dismissed by the Employment Tribunal. The employment judge found that the decision was based upon as much investigation as was reasonable in the circumstances and that the decision to dismiss was within the band of reasonable responses open to a reasonable employer. The employment judge held that the decision was ultimately made by the investigating officer, and that he did not appear to be “much influenced” by the input of HR. The Supreme Court’s decision in Chhabra was not referred to at all.
Mr Ramphal appealed. The EAT has subsequently set aside the decision on unfair dismissal, and remitted the case back to the Employment Tribunal to consider again in the light of Chhabra. The key comments in the EAT’s judgment are as follows:-
·The EAT considered that the decision in Chhabra effectively established an implied term that the report of an investigating officer for a disciplinary enquiry must be the product of their own investigations;
·The EAT found that the “dramatic” change in the investigating officer’s approach after intervention by HR was “disturbing” and HR had clearly involved themselves in issues of culpability, which should have been reserved for the investigating officer;
·The changes were so striking that they gave rise to an inference of “improper influence”. The EAT found that an investigating officer is entitled to call for advice from HR but HR must limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability.
The EAT reiterated these concerns in Dronsfield v University of Reading, in which the final version of the investigation report (which resulted in the dismissal of an employee) had been significantly altered in the light of HR and in-house legal advice. The EAT found that, given what had happened to the report the Tribunal needed to consider the changes that had been made and how they had come about when deciding if it had been reasonable for the employer to decide that the employee's conduct met the standard required for dismissal. The EAT was also surprised that the investigation report had been produced as though it was the joint responsibility of the investigator and the HR representative.