The role of HR in misconduct investigations

2015-09-22 Philip posted:

How HR can avoid influencing the outcome of a misconduct investigation.

In a recent case the Employment Appeal Tribunal had to decide whether a misconduct dismissal was fair when it seemed the HR department’s views on the employee’s conduct may have influenced a manager’s decision to dismiss.

The employer conducted an investigation into possible misconduct involving the employee’s expenses and use of hire cars. A manager was appointed to conduct the investigation who had little experience of disciplinary proceedings. During the course of preparing his report and decision, the manager received advice from the HR department which extended to the employee’s credibility and level of blameworthiness.

The manager’s initial report contained a number of findings in favour of the employee. The manager’s provisional view was that he was guilty of misconduct, rather than gross misconduct, and that he should be given a final written warning rather than be dismissed. But after further communications with HR, the manager’s report became more critical of the employee. The favourable findings were removed, and the manager’s conclusion about the severity of the offence was changed to gross misconduct. The employee was dismissed without pay or notice.

The Employment Appeal Tribunal decided t looked as though the HR department had tried to persuade the manager to take a more critical view of the conduct – an inference being the manager was inappropriately lobbied.

Although an investigating officer, or a manager in charge of dismissing an employee, is entitled to ask for guidance from HR or others in the organisation, the advice should be limited to matters of law and procedure, to ensuring that all necessary matters have been addressed and are clear, and the level of appropriate sanctions, with a view to achieving consistency across the organisation.

The EAT said an employee facing disciplinary charges, and potentially dismissal, is entitled to expect that the decision will be taken by an appropriate officer, who hasn’t been lobbied by other parties as to the findings to be made.

The clear message from the EAT in this case is that members of the HR team, or indeed anyone else in an organisation, advising in disciplinary situations must not try to influence managers about the way in which evidence should be interpreted or the level of any disciplinary sanction that should be imposed.

Share this post

Sign Up to Our Newsletter

Share this post


Directors, take note and consider your conduct carefully - you may not be immune from personal liability for…4M


Latest blog post is up: Employer references - are you aware of the legal requirements regarding work references?…CT


Employment tribunals have increased 30% since last year, which means delays for both employees and employers. If…89


I have no hesitation in recommending the services of Renney and Co. Jennifer Renney conducts herself in a professional manner at all times and she has given us sound and knowledgeable advice.

Local business


I’m getting on very well in my new job so it all worked out for the best in the end. Thank you once again for all help.

Client on 14th January 2015