HR should ensure that, when advising managers investigating or deciding on disciplinary matters, their advice is limited to matters of law and procedure, for example, to ensure all necessary issues have been addressed clearly; they should not advise on culpability or the appropriate sanction (save for addressing issues of consistency). The report of a manager investigating a disciplinary matter must be the product of their own investigations.
In Ramphal v Department for Transport, the first draft of the report prepared by the manager investigating allegations of fraudulent expenses claims recommended a written warning for misconduct. The recommendation was then amended to dismissal for gross misconduct following six months of discussions with HR. The EAT ruled that the tribunal should have considered whether improper influence had been exercised by HR, potentially rendering the dismissal unfair.
It would be prudent for at least a summary of advice given by HR to be recorded in writing, to provide evidence that the line between acceptable and unacceptable advice has not been crossed.
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Andrew Taggart
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Disclaimer
The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.