Business Law: Julian Outen on the role of HR in the disciplinary process

Julian Outen of Ellisons Solicitors.

Julian Outen of Ellisons Solicitors. - Credit: Archant

Business will welcome helpful guidelines from the Employment Appeal Tribunal (EAT) on how much involvement and influence HR should have in disciplinary investigations.

Crucially, HR must limit advice to questions of law, procedure and process, and avoid straying into areas of culpability. In particular, HR should not advise on what an appropriate sanction should be, outside of addressing issues of consistency. Significant influence by HR in the outcome of the process could potentially compromise its fairness and result in a finding of unfair dismissal.

The EAT allowed an appeal against the decision of an employment judge that an employee had been fairly dismissed in circumstances where the investigating officer’s recommendations had been heavily influenced by input from HR. The report originally recommended a finding of misconduct and a sanction of a written warning but, after numerous comments and amendments by HR, the final report found the employee to have committed gross misconduct, and recommended immediate dismissal.

This is a useful reminder as to how disciplinary procedures should be conducted and about the respective roles of line managers and HR. At Ellisons we are often asked to help pick up the pieces when things go wrong; following a few basic steps can help mitigate the risk of findings of unfair dismissal. The ACAS Code of Practice on Discipline and Grievance is a good starting point, as are your own policies and procedures. Basic principles include investigation of the issues, informing the employee of the issues in writing, convening a disciplinary hearing, informing the employee of the outcome in writing and affording a right of appeal.

Common mistakes include failing to inform the employee in advance of the case against him or making findings of misconduct in relation to new matters which have arisen during the process, but which have not been put to the employee. If new allegations come to light during the course of a process, these still need to be dealt in accordance with the same basic principles.

In some circumstances, procedural defects may be remedied at appeal, particularly where this takes the form of full re-hearing. It is therefore advisable to view appeals as an opportunity to ensure the procedures to that point are sound, and if not, to put this right.

It is sensible to review your disciplinary procedures periodically, and to provide appropriate training to line managers.

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: : Julian Outen is a partner in the employment department at Ellisons Solicitors

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