As you would expect, many employers rely heavily upon their HR personnel when undertaking disciplinary action. This week the Employment Appeal Tribunal* (EAT) confirmed what support and assistance should and should not be given by HR. The EAT reminded us that HR may give advice to the decision maker on procedural issues or questions of law. However, they must not seek to influence the decision maker on the determination of guilt or otherwise of the employee nor on the sanction to be imposed (other than to answer questions regarding consistency).
The facts of the case involved an Aviation Security Compliance Inspector who had been suspected of improperly putting through claims for expenses and using hire cars for purposes other than business. The manager appointed to conduct the disciplinary proceedings had never before been involved in this type of process. He sought advice from HR as to what he should do. In accordance with the disciplinary procedure having considered the evidence he prepared a report. There were a number of findings in it that were in the employee’s favour. For instance the manager had considered that the allegations if proven would amount to only misconduct rather than gross misconduct and that rather than dismissal, a final written warning was all that was really appropriate. However, it appeared that following further advice and guidance from HR, amendments to the report were made. The allegations were reclassified as gross misconduct and the conclusion was that the employee should be summarily dismissed.
When considering the subsequent claim for unfair dismissal it was found that the changes to the report had come about by reason of the advice from HR extending to issues regarding the employee’s credibility and his level of culpability. This had led to the inference that the dismissing manager had been ‘lobbied inappropriately’ by HR. In such circumstances the dismissal might be unfair as an employee facing disciplinary charges is entitled to expect that the decision will be taken by the appropriate officer him/herself, without any external influence or pressure affecting his/her decision.
*Ramphal v Department of Transport  UKEAT/0352/14/DA