Top Tips – The scope of HR input into disciplinary proceedings

 

Most employers will turn to HR for advice and guidance on disciplinary investigations; but when is there a risk that the input from HR goes too far? Following the coverage of the case of Ramphal v Department for Transport which gave important guidance on the limits of HR’s involvement in disciplinary cases, we have come up with a number of “top tips” for HR practitioners.

Ensure the investigator’s report is the product of their own findings

It is perfectly legitimate for HR to assist a case investigator in the presentation of a report, in advising on matters of law and procedure, and in ensuring that all necessary matters have been addressed for absolute clarity.

However, it is not the role of HR to alter the findings gathered by the investigating officer or to re-write the investigation report.  This applies equally to the conclusions reached by any disciplinary officer following the formal hearing.

Get the balance right

It can be very tricky to strike the right balance between what is acceptable input from HR and what is not.  It is clear from the Ramphal decision that HR should not advise on culpability.

In our view, it is still legitimate for HR to provide guidance to managers on the range of appropriate sanctions available, on the types of misconduct which may merit these sanctions and on other relevant factors to be taken into account such as mitigation and consistency of approach.

HR should ensure that ultimately, the decision as to the outcome remains with the relevant disciplinary officer.

Education, education, education

Training to educate managers as to basic employment law requirements and internal procedure relating to dismissals is strongly recommended.

Ultimately, if an employee contests their dismissal before a tribunal, the dismissing officer will need to explain his decision and cannot look to HR to assist with this.

Consider using legal privilege

When there is a particularly tricky issue to resolve, or a case where the investigating officer needs guidance which may go beyond the role of HR, consideration should be given to seeking advice from an employment lawyer. Legal privilege will apply to any such communications meaning that these are not disclosable before a court. Additionally,  any potential risks can be effectively mitigated.

 


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