HR boundaries redefined in disciplinary procedures?
A recent case in the Employment Appeals Tribunal could lead to a drastic reduction in scope of HR Professionals in disciplinary matters. Could your business be affected?
It has long been the case that when a disciplinary procedure is being followed, whilst the manager or relevant senior member of staff conducts the hearings, investigation and makes the final decision, HR have never been far behind providing their input and guidance. However, this could now be set to change.
The case of Ramphal v Department for Transport recently considered in the Employment Appeals Tribunal (EAT) led to the EAT specifying what HR’s role should be in disciplinary matters. The EAT specified that HR should only discuss the procedure and law, should never discuss culpability or advise on appropriate sanction save where giving guidance on consistency of
sanctions previously instigated.
This drastically reduces the scope of work many HR professionals undertake in disciplinary matters, particularly where there may be a more junior manager dealing with the proceedings or one who is inexperienced.
Does this decision actually impact the level of involvement HR can make?
On the facts this was an extraordinary case, with the manager conducting the matter making one report which eventually had numerous versions and a changed opinion demonstrating clear evidence that HR had been influencing the manager’s decision. This case has not yet been tested and it is therefore uncertain whether the judgment of the EAT would be followed. Some
suspect it will not.
However, at present it remains in force and HR should therefore be very careful in how they conduct themselves. They should never comment on the culpability of the matter and make sure that in any communication, even advising on the law and procedure as permitted above, it is clear that the decision lies with the manager. In practice, employers should continue to follow their own disciplinary policies as well as being compliant with ACAS best practice. If the correct procedures are followed and HR comply with the guidance above, leading to a fair and reasonable outcome it is unlikely a successful claim will be brought.
If you have any concerns regarding a particular case or your disciplinary procedure in general then please do not hesitate to contact us to discuss the matter further.