Misconduct dismissals: ruling shows risks of HR involvement

misconduct dismissals

A recent case where an HR team advised a line manager to dismiss an employee highlights the risks of HR involvement in misconduct dismissals. Akshay Choudhry of Burges Salmon LLP investigates the parameters for interventions.

In the recent case of Ramphal v Department for Transport, the Employment Appeal Tribunal (EAT) considered an HR department’s intervention in a disciplinary process. The intervention appeared to cause the line manager to change his conclusions about the severity of the misconduct that was under scrutiny, resulting in a decision to dismiss the employee rather than issue a final written warning.

The actions of the HR team may have been well-intentioned, and the temptation to redirect a manager’s findings will be familiar to many – not least when under business pressure to do so. However, this decision highlights how important it is that those in HR understand the parameters within which they must operate when involved in a disciplinary process. So, what are those parameters?

What is an HR adviser’s role in a disciplinary process?

The Ramphal decision makes for interesting reading. The EAT makes it clear that the role of an HR adviser in a disciplinary process is narrowly drawn; limited to assisting the investigation/disciplinary officer in relation to questions of law, procedure and process. In particular, an HR adviser should not stray into areas of culpability.

In the context of an investigation, the substance of the report should be the product of the investigating manager’s enquiries. Similarly, by extension, the outcome of a disciplinary decision must reflect the findings and conclusion of the disciplining manager.

This decision does not mean that, as an HR adviser, you cannot or should not have input into an investigation report or disciplinary outcome – on the contrary, that is usually a key element of the HR role. However, you need to be mindful as to the scope of your input. You can, for example:

  • Explain the requirements of your company’s disciplinary policies and procedures (and the Acas code) to the line manager, in advance of any disciplinary proceedings, and ensure that these are being followed correctly – this includes making sure the line manager has read and understood the relevant policies.
  • Ensure that the line manager has addressed all necessary matters, and has done so clearly and cogently. An HR manager can suggest changes to the presentation of a report – for example, suggest that findings and/or recommendations be set out more clearly – provided this does not affect the substance of the report.
  • Provide information as to how similar instances have been dealt with in the past, so as to ensure consistency, and guidance on how to assess the seriousness of a disciplinary offence (eg whether it could be gross misconduct or misconduct).
  • Highlight any matters that the line manager ought to have taken into account but has not considered, or matters which the line manager has been influenced by but ought not to have taken into account. This might involve suggesting witnesses to whom the manager might want to speak or identifying additional questions which might be asked, or playing “devil’s advocate” to help the line manager come to a robustly reasoned decision. To this extent, an HR adviser can challenge and test a manager’s findings – but must be careful not to exert influence over those findings or suggest that the findings might be wrong or contrary to what the company wants to achieve.
  • Provide and check relevant factual evidence, such as disciplinary or absence records.

This net result is that HR has a fine line to tread. It is fair to say that the facts in Ramphal were extreme. The final report and findings were so far removed from the initial draft that it was difficult to explain such a significant change in the line manager’s opinion, other than by reference to improper influence from HR, as evidenced by a paper trail of substantial amendments.

However, line managers often do lean heavily on HR – and indeed many are keen for HR to take the decisions – so it is important that the HR adviser and manager both understand the restrictions around HR’s input.

A stark way to test this is to ask yourself whether or not the investigating or disciplining manager involved could give evidence in a tribunal (having sworn to tell the truth) to say that the findings/conclusions were his/her own, and that they could cogently explain their rationale for these findings and conclusions.

How can HR provide guidance without overstepping the mark?

There are a number of legitimate steps that any organisation can take in order to reduce the likelihood of a line manager making investigatory or disciplinary findings that are out of step with business expectations. For example:

  • Have in place clear disciplinary policies and procedures. Not only should this help line managers follow the right course in the first place, it also gives HR advisers something to point to if a process looks like it might go astray.
  • Ensure line managers have received up-to-date training on conducting disciplinary investigations and hearings. In some cases, a “refresher” session in advance of a live process may help an inexperienced manager.
  • Talk the line manager through the investigatory/disciplinary process, explaining the different stages and what is required. Verbally test the manager’s thought process throughout the procedure if necessary. This will help the line manager to form clear and rational opinions.
  • Consider seeking legal advice. HR advisers can guide line managers on matters of law, but it may sometimes be more effective for your legal advisers to talk directly to the manager. In addition, a good lawyer will take into account any wider commercial considerations and may be able to guide a line manager accordingly. Although the application of legal privilege to any such communications is not always clear cut, it may be possible to keep that advice confidential.
  • If a manager does change an initial finding for good reason (eg because they carried out further investigations that shed new light on the issues), keep a record of the reasons for such changes. Memories fade and can make the innocent look suspicious; clear records can help remove that suspicion.

Can defects be corrected on appeal?

One unfortunate consequence of the constraints placed on HR advisers is that managers will sometimes make decisions that the business is uncomfortable standing behind. Perhaps key witnesses have not been interviewed, for instance, or the manager has come to a conclusion that is inconsistent with the evidence.

Helpfully, the appeal stage presents an opportunity to “cure” a potentially unfair dismissal – either by reinstating the employee if the dismissal was likely to be substantially unfair, or by remedying any procedural defects before affirming the dismissal.

The scope of an HR adviser’s input remains limited though, and the substance of the appeal outcome should be the appeal manager’s decision. In addition, although a more severe sanction is permissible on appeal (eg if the disciplining manager has given a warning in circumstances where dismissal may have been more appropriate), an employee is less likely to have appealed in such circumstances.

What can HR do if uncomfortable with a manager’s viewpoint?

When it is not possible to reach an outcome that the business is comfortable with, while remaining within the parameters of intervention open to HR advisers, another option is to move outside of those parameters by holding without prejudice discussions with a view to negotiating an agreed exit.

Of course, the business will need to consider what terms it is prepared to offer to the employee in question. What is appropriate will depend on the circumstances and the personalities involved. However, there are some ways to make the package attractive to the employee at little or no additional cost to the business.

Clarification

The Ramphal decision provides clarification of the role of HR during investigatory or disciplinary proceedings, albeit the restrictions imposed are arguably unwelcome for HR advisers. However, while they must be wary of straying into matters of culpability, it is clear that HR advisers have an important part to play within the permitted parameters. By playing that role correctly, HR can continue to significantly reduce the likelihood of misguided disciplinary decisions being made.

Akshay Choudhry

About Akshay Choudhry

Akshay Choudhry is an associate at Burges Salmon LLP.
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