HR advice did not automatically make employee's dismissal unfair

Facts 

Mr Shing was a Senior Lecturer at University of the Arts London (UAL). He had a brief romantic relationship with a mature student, who later complained about his behaviour. Following disciplinary proceedings, he was summarily dismissed.

Mr Shing claimed that his dismissal was unfair due to HR's involvement in the process. He also claimed that his dismissal amounted to discrimination on the ground of his Chinese race, asserting that two colleagues in similar roles, who had committed similar misconduct but were not of Chinese origin, had been treated more leniently. An employment tribunal dismissed both claims, and Mr Shing appealed.

EAT decision 

The EAT dismissed both appeals.

On unfair dismissal, the EAT held that the decision in Ramphal v Department for Transport does not create a rule that any HR advice on a dismissal is itself improper. There was no reason why, in an appropriate case, HR should not advise on the dividing line between the concepts of misconduct and serious misconduct. Such advice could help an organisation maintain consistency between different disciplinary decision-makers, which could of itself be important to fairness.

The EAT made it clear that the principle established by Ramphal is merely that if "undue pressure" is placed on the decision-maker by HR, or indeed anyone else outside the proper process, that could be weighed as a factor in determining fairness. The weight to attach to it would depend on the circumstances in each case.

In any event, the tribunal had found that there was no improper pressure in this case. The HR adviser had not altered any investigation report, and had drafted the dismissal letter only after the decision-maker had taken the decision to dismiss Mr Shing.

On the discrimination claim, the EAT upheld that the tribunal's decision that neither of the colleagues Mr Shing referred to was an appropriate comparator. The conduct of one of them was less serious than Mr Shing's, while the sanction imposed on the other had taken into account that he had shown significant remorse and had very long service with a clean disciplinary record. The tribunal had been entitled to treat these as material differences in the circumstances.

The EAT also held that the tribunal had not erred by failing to construct a hypothetical comparator. In the absence of evidence that Mr Shing's race had influenced the decision-maker, constructing a hypothetical comparator would have been an empty exercise that served no purpose.

What does this mean for employers?

The decision in this case provides welcome reassurance to employers that they can seek advice from HR on the disciplinary process, including on the distinction between misconduct and serious misconduct, and that HR can help to ensure that disciplinary standards are applied consistently across an organisation. However, it is essential that the appointed decision-maker reaches their own independent decision on the appropriate sanction. Employers should keep a clear record showing when the decision was reached, what advice HR gave and why the decision-maker accepted or rejected it. If there is evidence suggesting that HR has applied undue pressure, rewritten findings on culpability, or effectively taken over the decision-making, this is likely to lead to a finding of unfair dismissal.

The decision also makes it clear that when considering the consistency of disciplinary sanctions, material differences in circumstances may justify apparent differences in outcome. Relevant factors may include the severity of the misconduct, any admissions or remorse, length of service, and disciplinary history. Recording those differences at the time can help employers to explain why another employee is not a valid comparator in the event of a discrimination claim. 

Mr WYC Shing v University of the Arts London