The next step

To the EAT's ruling in the case mentioned in the article

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Disciplinary proceedings and advice from an HR advisor

Helpful HR

Although smaller employers rarely have internal HR departments, many do use external HR advisors. One area they are often asked to become involved in is disciplinary proceedings - these can present a minefield of problems, especially when it comes to imposing an appropriate disciplinary sanction on an employee. If you’re unsure what to do in this situation, you may well pick up the phone and seek their advice - after all, they are the experts.

Decisions, decisions

However, following the Employment Appeal Tribunal’s (EAT) ruling in Ramphal v Department for Transport 2015 , you must now be very careful when taking this approach (see The next step ). So what do you need to know about this case and what are its implications for employers? Ramphal (R) was employed by the Department for Transport (DfT) as an inspector. Following concerns in relation to his expenses claims and use of hire cars, the DfT commenced disciplinary proceedings against him.

Inexperienced manager

The manager appointed to conduct the disciplinary proceedings was inexperienced in this role and as a result the DfT’s HR team gave various advice, guidance and recommendations. As well as commenting on R’s credibility and level of blame, the HR team gave a view on the appropriate disciplinary sanction which should be imposed. Initially, it stated that R should be given a final written warning but later changed this to summary dismissal.

Undue influence

Having been dismissed R claimed unfair dismissal. The EAT stated that: (1) the DfT’s HR team had “unduly influenced the outcome” of the disciplinary proceedings and the sanction that was eventually imposed on R; (2) the disciplinary manager had not made an impartial and independent decision about the sanction; and (3) HR advisors must not challenge a disciplinary manager’s decision or tell them what to do.

No opinions please

Furthermore, the EAT directed that HR advisors must stick to giving employers and their managers advice on questions of law, procedure and process. They must never offer opinions on an employee’s culpability or the appropriate disciplinary outcome, e.g. “This is gross misconduct and warrants summary dismissal” or “If I were in your shoes I would...” . This remains the case even where a disciplinary manager is inexperienced.

Tip 1. However, an HR advisor can advise on the appropriate disciplinary outcome to ensure consistency of sanctions across the workforce, i.e. they can tell you what was done previously and whether you can (as opposed to should) follow it.

Tip 2. An employee has the right to see all written communications with HR advisors - this isn’t privileged information. Should their opinion be offered, the manager should clearly record how they took steps to reach their own decision.

For the EAT’s ruling in this case, visit http://tipsandadvice-personnel.co.uk/download (PS 17.17.03).