It is of course well established practice that a disciplinary officer can seek advice from HR on the matter. How much of an influence that advice can have is of course normally only known between the person giving the advice and the recipient of it. The Employment Appeal Tribunal (EAT) has recently given guidance in the case of Ramphal v Department for Transport as to the extent to which HR should be involved.
In this case, the issue was whether the HR officer had lobbied the dismissing officer as to the Claimant’s culpability and influenced the sanction given. The Employment Judge in the first instance said there was no undue influence but the EAT said that there was evidence to the contrary and the conclusions the Judge had drawn had not been clearly explained. The EAT held that any advice from HR should be around the legal issues and the procedure and not stray into culpability saying that:
“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.”
Employers should consider the remit of HR in each case and ensure that the disciplining officer has reached his/her own conclusions on guilt and is prepared to defend that decision in an Employment Tribunal if necessary.
24th September 2015