Case update (2): Unfair dismissal: HR teams – careful where you tread…

Summary: Can Human Resource’s involvement in a disciplinary investigation which goes beyond simply providing advice as to process, compromise the fairness of the dismissal?

Yes, says the EAT in Dronsfield v University of Reading available here.

Facts: The employee, Dr Dronsfield, was a professor at Reading University, and was bound by the university’s policies and procedures. One of these Policies dealt with personal relationships between staff and students. The guidance provided that any member of staff in a personal relationship with a student should inform the University in order that it could make arrangements to ensure that the assessment of the student in question would be unbiased. Dr Dronsfield failed to comply with this guidance and did not disclose a sexual relationship with a student. As a result, after being subjected to a disciplinary process, he was dismissed without notice.

Dr Dronsfield brought a Tribunal claim for unfair dismissal.

The Tribunal dismissed the claim and found that his dismissal was fair.  Dr Dronsfield appealed to the EAT. Dr Dronsfield argued, in particular, that the University’s investigation had been unfair because the investigation report on which the University relied in dismissing him, had been significantly altered in light of HR and in-house legal advice.

The EAT agreed with Dr Dronsfield and found that Dr Dronsfield had been unfairly dismissed.  The EAT found that the investigation report had been heavily influenced and amended by the University’s HR and in-house legal departments and as a result the final version of the investigatory report omitted various findings which were favourable to Dr Dronsfield.

Although the investigating officer had signed off on the final report, the EAT felt that standards of objective fairness had been compromised.  The EAT found that the Tribunal should have considered how the changes had come about when deciding if it had been reasonable for the University to dismiss Dr Dronsfield and why the investigating officer had changed his views to the detriment of Dr Dronsfield. The EAT referred the case back to the Tribunal to consider these changes and to decide, in the context of these, whether it was reasonable to dismiss Dr Dronsfield.

The EAT agreed with previous case law (see our September 2015 Newsletter Case update (3): HR teams – careful where you tread…) that HR advice in an investigation should be limited essentially to matters of law and procedure as opposed to questions of culpability, which should be reserved for the investigating officer.

Implications: This case and others (see our September 2015 Newsletter Case update (3): HR teams – careful where you tread…) confirms the view of the courts that HR’s role should be limited to matters of law and procedure in disciplinary matters. It should always be for the investigating manager to make up his or her mind about the appropriate action in any given case and care should be taken to ensure that any report demonstrates the independence of the manager’s decision.

Of course HR does have a vital role in disciplinary investigations in advising investigating officers on matters such as the sanctions the employer has previously imposed when facing similar cases, as well as advising on procedural issues. This advice may quite properly influence the investigator’s recommendations.  However, any decisions or recommendations that the manager handling the investigation or disciplinary hearing makes must be his or her own.

Overall, it would be better for investigating officers to seek HR and legal input on any specific investigation before to setting out their findings in writing.  In the event that a report does cause concern for HR or legal advisors then, if possible, it would be better for the disciplinary panel or decision maker to address any issues or concerns as part of their decision, rather than trying to “improve” the investigation report and thereby create a damaging paper trail.  However, if an investigation report does need to be altered following input from HR or legal advisors, then employers should make sure that they are prepared to provide a Court or Tribunal with a clear justification for those changes.