HR Dos and Don’ts in Disciplinary Hearings
Thursday 10th September 2015
The Employment Appeal Tribunal (“EAT”) has considered HR’s role in disciplinary hearings in the case of Ramphal v Department for Transport.
In this case an inexperienced dismissing officer, Mr Goodchild, received advice from HR during his decision making process. The advice went beyond matters of law, procedure and level of appropriate sanction, covering additional points including the employee’s credibility and level of culpability. It is interesting to note the following two different extracts in Mr Goodchild’s dismissal report which were drafted before and after HR’s intervention.
“…guilty of misconduct rather than gross misconduct and that he should be given a final written warning as to his future conduct…”
“…guilty of gross misconduct in respect of both the misuse of corporate card and the misuse of hire cars funded by the Respondent. My recommendation is that he should be dismissed from his post.”
Rather understandably, the EAT queried this radical change of view given that no new evidence had come to light in the interim. The case has been sent back to the Tribunal for reconsideration on the basis that the original Employment Judge failed to explain this point sufficiently.
The EAT has also issued some useful guidance at paragraph 56 of the Judgment:
“…an employee facing disciplinary charges and a dismissal procedure is entitled to assume that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability…..and also given notice of representations made by others to the Dismissing Officer that go beyond legal advice, and advice on matter of process and procedure.”
This case is a useful reminder as to HR’s role in disciplinary hearings. Legal advice and advice on matters of process and procedure are allowed. However, influencing decisions as to culpability is not. This guidance becomes particularly important at the point that witness evidence is being given in an Employment Tribunal Hearing. It is for the dismissing officer to give evidence in relation to their own decision making process and so they must be confident that it was their decision and that they can explain their reasoning.
Click here for a full copy of the case.