When HR fails to ensure procedural fairness.

legal-postIn allowing an appeal against an Employment Tribunal ruling, the EAT questioned the fairness of HR intervention when making a decision in the disciplinary process.

In the recent case of Ramphal v Department of Transport the Employment Appeal Tribunal [EAT] questioned the intervention of the HR department in that there had been a significant change in the opinion of the manager hearing the case following their interactions.  The judge hearing the appeal stated that “the changes were so striking that they give rise to the inference of improper influence”.

Procedural fairness is an important cornerstone in handling disciplinary matters.  The case of British Home Stores v Burchell provided a three part test with regard to the consideration of reasonableness of an employer’s conduct:  The employer must have an honest belief in the reason for the dismissal, there must be reasonable grounds for that belief, and finally the third part of the test which underpins the first two parts, which was provided by the Honourable Justice Arnold, that the employer must have “carried out as much investigation into the matter as was reasonable in all the circumstances of the case”.  With this ruling in mind the EAT found that that the intervention of the HR department in Ramphal raised enough of a question as to whether or not the decision to dismiss was fair and allowed the appeal.

With the repeal of the statutory dispute resolution procedures by the Employment Act 2008, the ACAS Code of Practice was reinstated as the main instrument for communicating an accepted standard of procedural fairness with regard to capability and misconduct.  The ACAS Code of Practice, the latest of which was issued in March 2015, is written not only with consideration of the statutory provisions, but also with consideration of the body of common law built up with regard to procedural fairness. Although the failure to comply with the Code of Practice does not render an employer liable to legal proceedings it must be taken into account by employment tribunals when considering the procedural fairness of a case.  The ACAS Code of Practice contains guidance as to the conduct of both investigations and disciplinary meetings.

Ultimately where an investigation can seem to be flawed, or tainted by bias or steered to a predetermined conclusion through external influence, the overall process it is unlikely to be considered fair.  In Ramphal v Department of Transport the question of overall fairness and impartiality was complicated by the fact that the investigating manager was also the manager making the disciplinary decision.

The reasonableness of an employer’s conduct when reaching decisions in disciplinary matters will be considered when deciding if a decision was fair or otherwise.  The importance of having an appropriate disciplinary procedure as well as supporting policies and guidance in place and communicated as well as adherence to these cannot be understated.

Jim Taylor LLM

The opinion given in this article is for general information only and is intended to illustrate and highlight themes which may affect employers and their employees. It should not be taken as specific advice on any situation or the appropriate course of action for any particular company or employer. Should you wish to discuss a similar situation or any other matter please contact Ascent HR Limited. ©Ascent HR Limited.

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