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What part can HR play in a disciplinary hearing?

21 September 2015

Employers find the help and guidance provided by their HR team invaluable during disciplinary procedures. A recent claim brought against the Department for Transport by a former employee called into question the role that an HR team can play during that procedure.

The Claimant, Mr Ramphal, was the subject of a disciplinary procedure as a result of allegations about his expenses and use of hire cars. A manager, Mr Goodchild, was appointed to investigate the allegations and decide an appropriate sanction. Mr Goodchild, being inexperienced in hearing disciplinary matters, took advice from the HR team. In addition to advising on matters of law and procedure, and the appropriate sanctions available, the HR team also guided Mr Goodchild in relation to Mr Ramphal’s credibility and level of culpability. The documents before the Tribunal showed that Mr Goodchild’s first opinion was that Mr Ramphal was guilty of misconduct and should receive a final written warning; but following discussions with HR, subsequently decided that Mr Ramphal should be dismissed for gross misconduct. Mr Ramphal claimed that his dismissal was unfair as a result of HR’s ‘inappropriate lobbying’.

The EAT described Mr Goodchild’s change of approach following his conversation with HR as ‘disturbing’. It held that the decision about culpability should have been reserved for Mr Goodchild, and that there was an inference of improper influence, and accordingly found that Mr Ramphal’s dismissal was unfair.

The EAT set out the following guidelines:

  • An investigating officer may call for advice from HR, but HR must limit their advice to questions of law, procedure and process.
  • HR must not get involved in the decision about culpability or the appropriate sanction, beyond addressing issues of consistency.
  • It is not for HR to advise whether the finding should be one of simple misconduct or gross misconduct.

The impact of this decision

The disciplinary officer appointed by the employer must have autonomy over the decision about whether there has been misconduct or gross misconduct, and the appropriate sanction. HR advisers must be careful not to involve themselves in the decision-making process.

Case cited: Ramphal v Department for Transport UKEAT/0352/14