HR should not assume decision-making role at disciplinary hearings

In the NHS, it is common practice for the employer to dismiss employees for misconduct using a "panel". Just who makes up the decision-making panel is often unclear, sometimes even to panel members. We have heard many cases where there was a panel made up of two managers and an HR representative only to be told, often in subsequent litigation, that the HR representative was an adviser to the panel. However, it seems clear that to some extent in most cases the HR adviser was involved in the decision. This lack of clarity, of a clear dividing line, between a decision-maker and adviser can be problematic.

In the case of Ramphal v Department for Transport the EAT has reminded employers that the HR adviser’s advice should be limited to questions of law and procedure and must not stray into whether the accused was or was not guilty.

During the ET hearing the employee alleged that the HR adviser had lobbied the dismissing manager, in effect tried to persuade the manager, as to the employee’s guilt and the sanction to impose. The main issue in the appeal was whether the employment judge had properly considered and made appropriate findings about that allegation.

The EAT found that there was evidence to support "an inference of improper influence and the employment judge should have given clear and cogent reasons for accepting there was no such influence", he did not and therefore the appeal was allowed and the case was remitted to the original employment tribunal for a rehearing.

The EAT has given some helpful guidance to employers about the role of advisers to disciplinary panels: "an employee facing disciplinary charges and a dismissal procedure is entitled to assume that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability ... and also given notice of representations made by others to the Dismissing Officer that go beyond legal advice, and advice on matter of process and procedure."

The same prohibition will apply to other professional advisers or experts in disciplinary cases.