HR overstepping their remit?
What are the proper limits of HR in a dismissal? Can HR tell a manager what the outcome of a disciplinary hearing should be or is their role limited to providing advice and guidance of the law and procedure?
This was looked at by the EAT in a decision this month in the case of Ramphal v Department for Transport.
An employee was accused of misuse of his company credit card and was dismissed for gross misconduct as a result. The manager who took the decision to dismiss appeared to have initially felt that this was a case where there was no dishonesty and so the employee should be given a warning for misconduct. However, the manager appears to have changed their mind after advice from HR to find that it was gross misconduct and that they had to dismiss the employee.
In order for any dismissal to be fair the employer must have a potentially fair reason to dismiss but they must also follow a fair procedure the “Was it reasonable to dismiss in all the circumstances” test.
The EAT said that the issue in the case was: “for the dismissal to be fair there has to be a fair investigation and dismissal procedure. If the integrity of the final decision to dismiss has been influenced by persons outside the procedure it, in my opinion, will be unfair, all the more so if the Claimant has no knowledge of it“
They also gave the following guidance that HR must take into account:
“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 that he should be given notice of any changes in the case he has to meet so that he can deal with them, 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 EAT have referred the case back to the Employment Tribunal to determine on the specific facts “whether the influence of Human Resources was improper“.
This case is a very useful reminder that the decision to dismiss an employee must be taken by the manager hearing the case and not by HR or other interested parties. Evidence that the decision was in fact made by someone else is very likely to render a dismissal an unfair dismissal particularity if that fact is not disclosed to the employee during the dismissal process.
Fox Whitfield can advise HR, employers and employees on disciplinary processes, procedures and unfair dismissal claims.
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Employment Law Solicitors – Head Office based in Manchester with offices located throughout the United Kingdom.