A recent case has highlighted the importance of restricting or clearly defining the role of HR in the disciplinary process. Failing to do so could leave an employer with an unfair dismissal on its hands.
In the aforementioned case, employee Mr Ramphal was being investigated by his employer regarding expenses and his use of hire cars. Mr Goodchild, the manager responsible for conducting the investigation, was inexperienced in conducting disciplinary proceedings. As such, he relied heavily on support from the HR department. In his draft report, he made a number of findings in favour of Mr Ramphal, and his initial conclusion was that Mr Ramphal’s actions amounted to misconduct as opposed to gross misconduct. Mr Goodchild then determined that a written warning would be the appropriate sanction. However, the HR department became involved and removed the positive findings, meaning that a finding of gross misconduct was determined and Mr Ramphal was dismissed.
As a result, Mr Ramphal brought a claim for unfair dismissal against his employer which was unsuccessful. However, on appeal the Employment Appeal Tribunal (EAT) held that the first tribunal had not fully considered what had led to Mr Goodchild’s changed decision. The EAT determined that the influence of the HR department on Mr Goodchild’s findings and the decision was inappropriate and went too far. The dismissing or investigating officer in a disciplinary case is entitled to seek guidance from HR however this guidance should be limited to matters of procedure and law - not opinion.
What can be learned from this case?
This case highlights a common problem in business, that the nominated investigating manager ‘hears’ the disciplinary hearing but the outcome is determined principally by the HR department supporting the manager. In practice, outcome letters are often written by HR and the manager signs it. This is not problematic as a process. However, the disciplining manager should have ownership and be responsible for the conclusions reached at the hearing. Where a manager has not reached their own conclusions about a disciplinary hearing, they may run into difficulty when cross-examined at a subsequent employment tribunal - including being asked, in detail, why they arrived at their conclusions. This case demonstrates that where a manager comes to their conclusions because HR told them to, they run a significant risk of losing the case for their employer. So how can you ensure that this doesn't happen to your business?
Advice for Employers
Make sure that managers are aware that they must reach their own conclusions through the disciplinary process. When they have reached their conclusions, ask them yourself why they have chosen the outcome and sanction. Make sure you are fully convinced of their views and conclusion.
When giving advice about sanctioning, make sure you give the advice in broad terms. For example, if gross misconduct was the conclusion, tell the manager that whilst the sanction is usually dismissal there may be mitigating factors in the case that need to be considered.
Offer numerous sanction or outcome suggestions to the manager. This makes them feel like they have control over the situation and are in a position to draw their own conclusions.
Where HR is to write the outcome, it is prudent to have a statement from the disciplining manager written also. In the manager’s written statement, they should outline their views about the circumstances, the conclusion and the sanction. The manager should not just sign but also review and amend the outcome letter to ensure it reflects their own views.
Ensure the advice is backed up with evidence. For example, where similar sanctions have been imposed in other cases.
Advice for disciplining managers
- You must remember that the outcome and sanctions for a disciplinary matter must ultimately be your own decision based on the circumstances. You may be required to defend your decision at a later date, so you want to be confident you have made the right choice.
- Make sure you fully understand the advice and evidence offered to you by HR and apply this to your own findings - don’t simply take their word for it.
- Never sign an outcome letter you have not fully considered or are not comfortable with. Amend the letter as necessary to reflect your own views and findings.
- Remember that after you have come to your conclusion about the findings of any misconduct, choosing a sanction is a separate decision. Whilst it may be suggested to you that if you find X, the sanction should be Y, you must consider each case on its individual merit. There may be mitigating circumstances such as length of service or low risk of it ever happening again; these should be taken into account when assessing an appropriate sanction.
- You should also be aware that correspondence on the matter between you and HR will normally be documents that could be disclosed in any employment tribunal case. You should beware of any statements that may lead a tribunal to the conclusion that you have not made your own decision.
Contact our Solicitors Glasgow
If you require advice or assistance with disciplinary procedures, unfair dismissal or employment tribunals, please get in touch. We have years of experience in dealing with a variety of circumstances involving unfair dismissals, and can advise you of your legal position and how best to proceed. Contact our employment law solicitors in Glasgow for advice on unfair dismissal or any other employment issue you may have, on 0141 530 7465 or complete an online enquiry form and we will get back to you.
