09 Sep 2015

EAT sets parameters on the role of HR in disciplinary proceedings

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The EAT in Ramphal v Department of Transport has set out the boundaries to the role and influence HR should have in disciplinary proceedings.  Taking authority from an earlier Supreme Court decision, the EAT confirmed that the disciplinary decision maker is entitled to seek guidance from HR on issues of procedure and applicable law, this advice must not extend to matters of credibility or culpability of the individual facing disciplinary action.
 
In Ramphal, the HR department was found to have "inappropriately lobbied" an inexperienced manager who was conducting an investigation into possible misconduct in relation to expenses.  After consulting with HR, the manager dramatically changed his stance from "misconduct" to "gross misconduct", leading to summary dismissal.
 
What does this mean for HR professionals?
 
Often HR will be asked for their view on the disciplinary outcome by those charged with making the ultimate decision.  HR should avoid giving their opinion on what they think the outcome should be.
   
HR can still attend disciplinary meetings to ensure procedural fairness and provide clarity on employment law issues.  However, they must be mindful not to exert any influence over the investigating/dismissing officer, which may have the potential to colour that individual's views on the ultimate decision. This includes advising on what HR believes to be the appropriate sanction in light of findings of fact.  The decision should be the decision maker's alone.
 
Following Ramphal, employees facing disciplinary charges (not just dismissal) are entitled to expect that the end decision will be taken by the person chairing their disciplinary alone, free from any external influences – HR or others.  To ensure the process is fair, the EAT stated that employees subject to disciplinary action should be notified of any representations made by HR to the decision maker, which go beyond legal or procedural advice.

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