Disciplinary decision-making and the role of HR
The recent decision of Ramphal v Department for Transport serves as an interesting reminder of how an Employment Tribunal will view intervention from HR in disciplinary decision-making. It is a salutary lesson – you can read the judgement here.
During the hearing the tribunal had sight of various drafts of an investigation report (subject to the normal rules of disclosure during the proceedings) and this allowed it to track the involvement of HR in influencing the investigating officer. In an early draft the officer was advocating leniency, but after input from HR the recommendation was summary dismissal. The first Employment Judge overlooked this, but the EAT sent the case back for re-hearing and took the opportunity to remind employers that they should only be seeking guidance from HR on matters to do with the ‘law and procedure’.
There is plenty of comment on the case, but little of it calls out the fact that disciplinary hearers often don’t like to make the decision on their own and a ‘committee’ response is sometimes the reality (with opinions on the right outcome not just coming from HR!). Employment Judges know that this happens (some of the time at least). An effective claimant’s representative will pick the point up quickly and look for evidence to prove it. What sits behind the case law is a wish to ensure that the employee has a reasonable opportunity to make representations and to challenge. If the identity of the decision-maker is unclear it can prevent that.
But is it wrong to seek to influence? How do you walk the line between advising and influencing? Does one not inevitably lead to the other?
It is important that HR’s support remains effective and constructive – and that the decision does not lead to a retreat. It is clear that you can provide information about consistency and previous similar cases. The suggestion from the judge in Ramphal is that you should not stray into the territory of culpability, but where is the line between advice on other cases ‘in the abstract’ and giving a view on culpability? Whatever the answer to that, it is vital that the decision-maker owns the decision and you are not forcing their hand. Try to recognise that temptation and resist it. If your managers are trained and processes are well managed they should understand your role and seek guidance at the right times and in the right way.
Here are some other observations worth making on the back of the decision:
1. In this case, the investigator was also the decision-maker. When the roles are separate (as is more common), the remit of an investigator should be considered carefully. My view is that it should, where possible, be confined to making factual findings and identifying a ‘case to answer’. This helps to confine the scope for allegations of inappropriate influence or attacks on the status of the investigator’s views.
2. Be aware that multiple travelling drafts of reports may be disclosed in employment tribunal litigation. The judges are interested in who made the decision and if there is a challenge to this, the drafts are relevant.
3. If you know that HR advice has gone beyond the norm, it may be appropriate to declare involvement so that the employee gets a chance to understand and comment on it. It is in fact suggested in the Ramphal decision that an employee should be given notice of any representations made by parties other than the decision-maker. To accommodate this you might need a line in your disciplinary policy allowing the decision-maker to call for additional input and/or the creation of a panel if the need arises.
4. You don’t need reminding, but if difficult advice on the approach to disciplinary action is to be taken, seeking legal advice on the fairness or otherwise of the decision will usually help to secure privilege and protect exchanges about the merits.