Disciplinary investigations: when is HR advice appropriate?

In the widely reported case of Ramphal v Department for Transport UKEAT/0352/14 (see Legal update, Disciplinary investigation heavily influenced by HR led to unfair dismissal), the Employment Appeal Tribunal (EAT) upheld a finding of unfair dismissal due to the inappropriate level of interference in the dismissal process by an HR manager. The EAT’s judgment included a table showing the extent of changes made to various drafts of an investigation report, many at the suggestion of HR.

In many ways, the outcome of the case was unsurprising. It does not set out new principles of law or break any new ground. However, the issues covered are particularly relevant to those working in-house, given the close relationships that often develop between HR and Legal.

HR advice: when is it appropriate?
Nobody envies the first-time decision manager. He will be anxious to get the decision right; knowing the importance of a misconduct dismissal on someone’s future career. It is only natural that he wants to take advice to ensure that the company’s policies are correctly applied and that he is adopting the right legal approach to tricky questions, such as requests for adjournments and representation.

It is worth emphasising that nothing in Ramphal changes a manager’s ability to seek that advice. Questions of process and procedure fall squarely within HR’s purview and they would be expected to provide such guidance.

Slightly closer to the line are questions of legal rights. Most misconduct cases can be resolved by findings of fact and a manager’s conclusion based on those findings. However, there are hearings that managers have to chair which do involve issues of employees’ legal rights, such as sickness absence procedures and requests for reasonable adjustments. No tribunal would expect a decision manager to be an expert on such matters.

Most employers will have policies for a manager to follow, but it is important that he does not do so slavishly or unthinkingly. He needs to ask the right questions to be able to make an informed opinion based on the facts before him. Remember that no two cases are the same and a policy, however comprehensively drafted, will never be able to encompass all factual circumstances.

I was recently involved in case in which a manager heard an appeal involving reasonable adjustments and a disability-related dismissal yet failed to ask the HR manager supporting him any questions about the appellant’s right to have his disability taken into account under the sickness absence procedure. Rather, he took it at face value that the appeal should be dismissed, provided the policy had been followed. Needless to say, the tribunal was critical of such an unthinking approach to the appeal.

Where the use of HR by a hearing manager does over-step the mark and potentially lead to a finding of unfair dismissal, as in Ramphal, is where HR are not just giving advice but rather giving the answers, especially on matters that fall within the remit of the manager. Whether the manager is conducting an investigation or hearing a dismissal or an appeal, he will be expected to make factual findings based on the evidence he has heard and come to his own conclusions based on that evidence.

In the classic case of a potential misconduct dismissal, the hearing manager must take responsibility for determining whether the employee committed the alleged acts. It is not appropriate for HR, or anyone else in the organisation, to tell that manager what outcome he should find on the facts.

Often managers will seek guidance about what it means to find that someone did something: what is the standard of proof. In those situations, I don’t think that there is much to be gained by referring to a ‘reasonable manager’ or ‘the balance of probabilities’. They are abstract legal terms that are hard to describe. In any event, presumably most managers think that they are a reasonable person. The issue for the manager is simply whether he believes that the employee did what he was accused of. The manager must to be able to explain why he reached that finding: why didn’t he believe the employee? Provided he feels that he has proper grounds to support his finding that should be enough.
One caveat to that general position: I think it is appropriate for HR to stress to managers that the more serious the consequence of their decisions, the more confident they must be that the investigation has been rigorous and that they have robust evidence on which to make a finding that someone was guilty of the allegation. This is in line with case law (see A v B [2003] I.R.L.R. 405 and Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721).

How to deal with the HR advice in tribunal
I often have clients wanting to call everyone involved in a disciplinary process: the investigation manager, the disciplinary manager, the appeal manager and the HR support. A useful discipline is to ask why someone is being called; if there is no good reason, don’t call them. The more people that are called, the more chance there is for the evidence to come across as confused or contradictory.

For that reason, if HR has merely provided support and general advice to the disciplinary process, there is often little need to call them. Even where the case resolves around the application of a more complicated policy, the decision-makers (the dismissal and appeal managers) should be able to give evidence about and explain a policy. The circumstances in which a tribunal will need to hear from an HR manager who didn’t have a decision-making responsibility will be relatively rare; possibly in a case involving justification, such as indirect discrimination.

There is no shame in a decision-maker taking appropriate HR advice and there is no need to hide it in their witness evidence. I would advise generally to be upfront in the witness statement by setting out what matters they took advice on and, conversely, those they did not (for example, that it was their decision alone as to guilt). It is much harder to cross-examine someone who has told the full story in their witness statement.

Devereux Chris Stone

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