16 August 2017

When providing guidance and input on running the disciplinary process it is important to strike a balance between providing guidance and having influence on the ultimate disciplinary sanction. Case law in recent years has made clear the importance of ensuring HR doesn’t get too involved in the decision making process (unless acting as the disciplinary officer) by confining its role to ensuring the process is procedurally fair (including adhering to internal policies and the ACAS Code) and the sanctions being considered are within the range of reasonable responses.

Overstepping the mark and influencing any disciplinary decision is obviously a no no but what about the content of the investigation report? A number of cases have recently arisen where HR or in-house legal advisors have overstepped the mark when the investigation report is concerned, going so far as to add emphasis to certain allegations and include opinion as to what sanction should apply.

In terms of any disciplinary investigation HR can assist to ensure the investigation would be considered reasonable and that the employee is given all the evidence from the investigation to prepare for their disciplinary hearing. This would include for example advising that a witness statement needs to be taken.

It is useful to remember that at tribunal, consideration will be had of what was in the mind of the disciplining officer; a genuine and reasonable belief that an employee’s conduct is unacceptable and sufficiently serious to warrant the sanction being applied. The investigation report is usually the starting point for any decision. A report that is not balanced or contains opinion could easily influence the disciplining officer in issuing too drastic a sanction. Likewise ensuring all available sanctions are considered by the disciplining officer is vital but making suggestions as to what sanction you think is appropriate is going beyond the remit.

These cases clearly highlight the delicate balance to be struck in supporting an investigating/disciplinary officer in undertaking their role and the consideration given by Employment Tribunals to the influence of HR advisers. It is also worth remembering that HR advice unlike Solicitor’s advice is not legally privileged and is therefore disclosable at tribunal.

For more information contact Dawn Gallie on 01935 846233 or