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Disciplinary investigation heavily influenced by HR resulted in unfair dismissal

Posted by TonyBrownEmploymentSolicitor on November 2, 2015

HR departments are routinely involved in disciplinary investigations. But how much involvement and influence can HR legitimately have in such matters? In the next case, the EAT decided that a disciplinary investigation that had been heavily influenced by HR resulted in an employee's dismissal being rendered unfair.

In that case, following a random audit, the Claimant was investigated in relation to possible misconduct concerning his expense claims.

At first, his line manager felt that none of the concerns identified required further investigation but another manager (Mr Goodchild) was instructed to carry out a further investigation.

The first draft of Mr Goodchild’s report was balanced, noting the Claimant’s ‘plausible’ explanations, and recommending a finding of misconduct and a sanction of a final written warning. However, after HR was consulted about the draft report, all favourable comments in the report were removed, the conclusion was changed to a finding of gross misconduct and a recommendation of summary dismissal.

The Claimant was dismissed and brought a claim in the ET for unfair dismissal.

Although the ET noted ‘the ‘lax procedures’, it decided that there was no improper influence over Mr Goodchild by HR and the decision to dismiss the Claimant was fair.

The Claimant appealed.

The EAT allowed the appeal, setting aside the tribunal’s decision on unfair dismissal, and remitted the case to the tribunal to re-consider the claim.

The EAT said that the report of an investigating officer must be the product of their own investigations. S/he is entitled to consult HR for advice but HR must limit their advice essentially to questions of law and process. In this case, HR had gone significantly beyond advice limited to process.  Their advice led to a reshaping of Mr Goodchild’s views, changing his findings on blame and credibility, in a way that was ‘disturbing’. This gave rise to an inference of improper influence. 

The EAT judge said:

“I consider 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 that he should be given notice of any changes in the case he has to meet so that he can deal with them, 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.”

Comment

HR departments are routinely involved in disciplinary investigations. However,

their advice should be limited to matters of law and procedure, as opposed to questions of liability and the appropriate sanction, which are matters reserved for the investigating officer.

If HR strays into the decision-making process they could compromise the fairness of the investigation process and result in an unfair dismissal.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk

Warning - this bulletin is provided for information only and is not a substitute for legal advice. You should obtain specific, personal advice about your circumstances and not rely on the information or comments in this bulletin.