10 August 2016

The role of human resources in disciplinary investigations: when can it lead to unfair dismissal?

This article was written by Anne-Marie Davies, Associate

The EAT has confirmed that if Human Resource's involvement in a disciplinary investigation goes beyond simply providing advice as to process, there is a danger that the fairness of the investigation process could be compromised. 

The case of Dronsfield v University of Reading concerned a university professor’s claim for unfair dismissal.  The claimant had been dismissed following an affair with a student (which was not expressly prohibited by the University's conduct rules)  and the Tribunal at first instance found the dismissal was fair.

The claimant appealed to the EAT on a number of grounds, but in this article we focus on one in particular: the claimant’s argument that the University's investigation had been unfair, because the investigation report on which the University relied in dismissing him had been significantly altered in light of HR and in-house legal advice.

The EAT allowed the appeal.  It found that the tribunal needed to consider how the changes had come about when deciding if it had been reasonable for the University to dismiss the professor in the circumstances. The EAT agreed with previous case law (Chhabra and Ramphal) that HR advice in an investigation should be limited essentially to matters of law and procedure, as opposed to questions of culpability, which should be reserved for the investigating officer.

What does this mean for employers?

HR has a vital role in disciplinary investigations in advising investigating officers (who may be new to the task) on matters such as the sanctions the employer has previously imposed when facing similar cases, as well as advising on procedural issues.  This advice may quite properly influence the investigator’s recommendations. 

However employers should be very careful when circulating draft investigation reports internally, to avoid creating a document that may be disclosable in future litigation and which may include flawed information or recommendations.  In the first instance, and particularly in cases where the stakes are high for employers, it is preferable for investigating officers to seek HR and legal input prior to setting out their findings in writing.  In some cases however, this may not occur; HR or legal are frequently only involved once such potentially unhelpful first draft reports already exist.  In such cases the better approach may be for the disciplinary panel or decision maker to address any issues or concerns as part of their decision, rather than trying to “improve” the investigation report and thereby create a damaging paper trail.

This case is also a reminder that, in light of the EAT’s finding in Chhabra and Ramphal of an implied term concerning HR's role in disciplinary investigations, evidence of improper HR influence could also form the basis of a breach of contract and potentially constructive unfair dismissal claim.  In some cases this could result in a claim against the employer and the loss of contractual protections for the employer such as post-termination restrictions – even where the employee has been guilty of the wrongdoing under investigation.  

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