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Getting too close to the decision

23 Oct 2015

HR must limit the extent to which it advises on disciplinary cases, particularly where dismissal is involved, or it risks rendering a dismissal unfair.  This may feel counter-intuitive – HR professionals do their best to help managers make decisions during disciplinary procedures and often they are called upon to give considerable guidance.

However, as the recent EAT case of Ramphal v Department for Transport reminds us, too much HR influence can be unfair.  In that case, the manager who conducted the disciplinary investigation originally recommended a finding of misconduct with a sanction of a final written warning.  He thought that Mr Ramphal’s explanations for certain irregular expense claims were plausible and consistent.  However, following lengthy discussion with HR, his final report recommended a finding of gross misconduct and summary dismissal.  Instead of giving Mr Ramphal the benefit of the doubt in various areas, he was highly critical of him.

The evidence in the employment tribunal showed that his change of mind had been heavily influenced by HR.  The shift from the initial recommendation to the final verdict was so striking that it gave rise to an inference of improper influence.

The EAT emphasised that whilst an investigating officer is entitled to call for advice from HR, this must be limited to questions of law, procedure and process and must avoid straying into questions of culpability.  In particular, HR should not advise on what an appropriate sanction should be, except as necessary to advise on matters of consistency.

In practice, when a manager asks for advice on what decision they can make, or what decision they should make in a particular case, HR should limit their advice to the range of decisions that might be made.  If the manager’s decision is notably inconsistent with decisions in similar cases, HR should draw this to their attention and invite them to reconsider.  But they should not recommend a decision.

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