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Tribunal limits extent to which HR can advise in disciplinary proceedings, including decisions to dismiss

Employers should ensure Human Resources (HR) personnel do not comment on issues such as credibility and culpability when supporting managers who are conducting investigations, making decisions to dismiss and other disciplinary functions.

In a recent case, a manager was appointed to investigate alleged misconduct by an employee in relation to expenses and use of hire cars. Initial drafts of his report showed he accepted the employee’s explanation. However, the employer’s HR department subsequently became involved, commenting on issues such as the employee’s credibility. The manager’s final report was radically more critical, and the employee was eventually dismissed. The employee claimed unfair dismissal.

The Employment Appeal Tribunal (EAT) ruled that an employee in disciplinary proceedings is entitled to expect that decisions about issues such as credibility and culpability will be decided by the person appointed to conduct the investigation, without being ‘lobbied’ on such issues by anyone else, whether within or outside the organisation.

The EAT said a dismissing or investigating officer could seek guidance (eg from HR), but only on matters of law and procedure, and to ensure “all necessary matters have been addressed and achieve clarity”. It also said employees should be given notice of any changes in the case against them so they can deal with them.

The matter was remitted back to the Employment Tribunal.

Operative date

  • Now

Recommendation

  • Employers should ensure HR personnel do not comment on issues such as credibility and culpability, but restrict themselves to advice on law, procedure and appropriate sanctions, when supporting managers who are conducting investigations, making decisions to dismiss and other disciplinary functions.

11 November 2015

Jonathan Waters has over 12 years of experience advising businesses in relation to commercial disputes and how to avoid or resolve them. He has a particular interest in construction law and adjudication, and he is currently studying for an Msc in Construction Law & Dispute Resolution at King’s College. Before starting Helix Law, he was the partner in charge of Commercial Litigation, Employment Law and Property Litigation at Stephen Rimmer LLP. He has a degree in Business Administration and before qualifying as a solicitor he worked in industry and investment banking for over a decade.

This article is written to raise awareness of the issues it discusses and it may not be updated after it is first written, even if the law changes. It is not intended to be legal advice and cannot be relied on as such. Helix Law is not responsible or liable for any action taken or not taken as a result of  this article. If you think the matters set out affect you and you wish to apply them to your particular circumstances then we are happy to give you free initial telephone advice. 

Contact Helix Law on 01273 761 990 or email: [email protected]