The role of HR, as we know it...
Author: Michael Briggs
Applies to: England, Wales and Scotland
Case law has again confirmed that an employer's HR department is essential to supporting management when dealing with employee relations issues; however there is a clear difference between supporting a process and influencing a decision.
The EAT in the case of Ramphal v Department for Transport has held that an investigating manager's report and approach generally to a disciplinary process had been 'disturbing' following intervention by his HR team, and that HR had clearly involved themselves and influenced in the issue of culpability - a matter which should have been reserved for the investigating manager only.
As a result, the EAT set aside the Tribunal's earlier finding that there had been a fair dismissal, and remitted the case back to the same Tribunal for reconsideration taking into account the correct line of legal authorities. In doing so, the EAT referred to the Supreme Court's decision in Chabbra v West London Mental Health NHS Trust which held that advice provided by HR to investigation managers and other managers involved in the decision-making process should be limited to answering questions of law, procedure and process.
Following a disciplinary hearing (and earlier investigation), Mr Goodchild produced and sent a draft report to his HR team setting out his recommendations in response to his disciplinary investigations. That report, although partly critical of Mr Ramphal's behaviour (regarding excessive petrol use, using a hire car for personal reasons, and suspicious purchases on his company credit card), also confirmed his belief that the misuse had not been deliberate and that the explanations given had been plausible and consistent. Mr Goodchild believed that Mr Ramphal's behaviour amounted to misconduct rather than gross misconduct and recommended that a final written warning be issued.
However, after months of correspondence between Mr Goodchild and his HR team, the draft report and recommendations were totally transformed. The favourable comments were removed and replaced with critical comments and the overall view of culpability became one of gross negligence rather than misconduct. In the end Mr Ramphal was summarily dismissed and pursued a complaint of unfair dismissal.
The Employment Tribunal Judge held that there had been a fair dismissal and that Mr Goodchild's decision had not been 'much influenced' by HR but had been based upon as much investigation as was reasonable in the circumstances. The EAT did not agree. On the facts, the HR team had clearly involved themselves in the decision-making process, which was outside of their remit.
As with other professionals, HR practitioners must be aware of the scope and limitations of their role. Similarly, they can point to this case whenever a manager seeks more than guidance in a case. HR practitioners should therefore be extremely cautious not to be seen to be advising disciplinary managers what the outcome of a matter should be, or otherwise advise on culpability. Any ultimate decision should be that of the disciplinary officer. The same applies in relation to grievance processes.
As a result, HR practitioners should offer advice or direction in relation to:
- applicable and relevant policies and procedures;
- relevant points of law (as appropriate);
- a range of possible outcomes or disciplinary sanctions that may be appropriate; and
- any previous cases where circumstances were similar, and the sanctions imposed in those cases, to ensure consistency of treatment.
Any more than the above could result in a finding of unfair dismissal if it is considered that HR had a hand in the decision or "lobbied" the disciplining manager for it.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.