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.

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