Disciplinary hearings can be stressful procedures for all involved, and guidance from a competent HR adviser can be invaluable. It is, however, important to ensure that the role the HR adviser takes is made clear from the start of the process. There have been a number of tribunal cases where the role of HR in a disciplinary hearing resulted in a dismissal being unfair due to there being questions over impartiality and the confused role of HR during the disciplinary process.
To help you assess how best to utilise your HR adviser, and stay the right side of employment law, we have set out some questions below.
We'll be covering:
- What is the primary function of an HR adviser?
- What is the role of an HR adviser in a disciplinary process?
- What is meant by advice about questions of law, procedures and process?
- If you ask a legal question of your HR Adviser, is it the same as asking your solicitor?
- What should an HR adviser not do?
- Can an HR adviser carry out the disciplinary investigation or chair a disciplinary hearing?
- What are the key points to consider?
What is the primary function of an HR adviser?
The primary function of an HR adviser is usually to provide information about questions of law, procedure and process relating to staff issues in your business. It is up to you as to whether you choose to use your own HR adviser, if you have one, or hire a third party for assistance with HR in your business. If you are undecided as to whether you would benefit from having an HR department, this article might help you to decide: Do companies need an HR department?
What is the role of an HR adviser in a disciplinary process?
Given the primary function of an HR adviser, their role in the disciplinary process should usually be that of an adviser, not an active participant in the process. To determine whether this is going to be possible for your organisation, you need to first check the role (if any) given to your HR adviser in your own internal disciplinary procedure.
In terms of the roles individuals within your organisation have in your disciplinary procedure, it should be clear from the outset who will:
- Carry out the investigation process;
- Conduct the disciplinary hearing; and
- Conduct any appeal hearing.
Those individuals should be, ideally, different for each step and will generally increase in seniority, as the procedure progresses. You should not have the same person carrying out more than one part of the process.
Again, ideally, your HR adviser would not be in any of these roles enabling them to carry out their primary function of providing advice about questions of law, procedure and process to the individuals carrying out the different stages of the disciplinary procedure.
The procedure should be fair and transparent from the beginning and the employee must be given the opportunity to put their case to the true decision-maker and be clear on who the decision maker is.
What is meant by advice about questions of law, procedures and process?
The HR adviser can give advice about what is legally required for a fair investigation and can assist in the presentation of the investigation report to ensure that all necessary matters have been addressed clearly.
In terms of the disciplinary hearing, an HR adviser can explain to the person chairing the disciplinary meeting the legal test that they need to satisfy themselves of if they are to find the individual culpable of the disciplinary misconduct. An HR adviser could also offer advice about who can be present at the hearing and the timings for setting hearings and providing decisions after the hearing in order to be compliant with the ACAS Code of Practice on disciplinary and grievance procedures and your business’ own disciplinary procedures.
When conducting an appeal hearing, additional legal matters could include matters such as the difference between an appeal hearing and a rehearing and how the hearing should be conducted in each case.
If you ask a legal question of your HR Adviser, is it the same as asking your solicitor?
No. It is important to note that when asking an HR adviser legal questions, those questions and any advice you receive as answers to those questions are likely to be given to the employee if the matter ever goes before an Employment Tribunal. They might also be handed over to the employee if they make a subject access request under the GDPR.
Whilst HR advisers may be well versed in the legal issues involved, HR advice on legal issues is not covered by legal professional or litigation privilege (Privilege). The advice received by you from an HR adviser is legally required to be disclosed. Privilege entitles you to withhold evidence from production to a third party (such as the employee) or the court/tribunal. This evidence may be either written or oral.
Therefore, if you have a knotty legal issue it is probably best to direct questions to your employment solicitor, as then Privilege will apply, and your correspondence to your solicitor and advice received from your solicitor will not be given to the employee in any future litigation or under the GDPR.
What should an HR adviser not do?
It is important that an HR adviser does not stray into areas of decision making in disciplinary matters. It is natural to rely heavily on your HR advisers, they are trusted individuals who ensure an important part of your organisation (your employees and contractors) is functioning optimally for your business. They should not, however, give advice on whether the employee, who is the subject of disciplinary action is guilty of the misconduct, unless HR is performing that function only in the disciplinary process.
This is true whether the indication is given in the investigation report, or to the chair of the disciplinary or appeal hearing. The decision about the employee’s guilt in a disciplinary or appeal hearing is for the person(s) making the decision.
This is important as otherwise fair dismissals can be held to be unfair. You can read more about this in our advice post, What Is a ‘Fair’ Dismissal? From the personal perspective of the decision maker it is important too. It is much easier to give credible witness evidence at a tribunal about your thought processes in reaching the decision to dismiss if you were the one who actually had that thought process. Saying or giving any indication that you relied on an HR adviser when deciding whether to dismiss will likely result in your defence to a claim for unfair dismissal failing.
In essence, there should be no sense that an HR adviser was interfering or manipulating an investigator’s conclusions or a decision maker’s decision.
Remember, in a disciplinary process, the test for misconduct is whether the person who made the decision to dismiss had a genuine belief in the employee’s guilt and that they formed that belief after a reasonable investigation.
It will be hard to convince an Employment Tribunal that you had a genuine belief in someone’s guilt if you required an HR adviser to tell you.
It will also be hard to convince an Employment Tribunal that an investigation was fair and reasonable if the person conducting the investigation had to be told by an HR adviser that the matter warranted disciplinary action.
Can an HR adviser carry out the disciplinary investigation or chair a disciplinary hearing?
If you want the benefit of an HR adviser’s wealth of experience in a disciplinary investigation, you may want them to carry out the investigation. But given that interference or manipulation by an HR adviser can render an investigation unfair, is it safe to allow them to carry out the investigation?
The short answer is yes: there is nothing in the cases dealing with HR interference in a disciplinary investigation or hearing that prevents them from carrying out an investigation or chairing a disciplinary hearing (provided they have been given the authority to do the latter by your organisation).
Indeed, it is commonplace to have an HR adviser to do so, whether this is someone from within an organisation or who has been independently contracted by an organisation to do so for a particular matter. Often, they are the people best placed to do so because they understand the issues involved.
It is important, however, to remember that the same rules apply. The wider HR team should not influence the investigation or make a recommendation about the guilt of the employee to the person conducting the investigation of hearing.
On a related note, it is generally not a good idea for a solicitor to conduct an investigation hearing or chair a disciplinary hearing. A recent case highlighted the problem of solicitors being witnesses of fact in their own clients’ cases. Not only would you be in a position of your solicitor not being able to represent you in any subsequent employment tribunal proceedings, you would also have the issue of whether the solicitor could give full evidence without breaching client confidentiality or information that you thought was privileged.
What are the key points to consider?
HR should generally be used in disciplinary investigations to advise decision makers on processes and points of law as well as perhaps how similar historical cases have been treated, to ensure consistency.
If HR is to have a role in deciding on guilt or innocence, or what sanction is to be imposed, it needs to be transparent with the employee about this and cannot be involved in other areas of the process.
Legal advice sought from and received by HR will not be Privileged and so will be disclosable in court. Legal advice from a solicitor will not be admissible as it will be Privileged, but this Privilege can be forfeited if forwarded internally and so communications should be directed to the correct person(s) within your business to prevent this.