Unfair dismissal: The role of HR in disciplinary investigations
Published 6 September 2016
In this case, the EAT considered whether changes to an investigation report following HR's involvement might mean that the dismissal was unfair.
Dr Dronsfield was an associate professor at the University of Reading. He was charged with having been in a relationship with a student who he had supervised and assessed, and not reporting this relationship. The allegation was investigated by Professor Green, assisted by Ms Rolstone, an HR partner. The report drafted by Professor Green was amended following conversations between Professor Green and Ms Rolstone. Significantly, Professor Green's draft included several statements of opinion which were favourable to Dr Dronsfield. These statements were omitted or substantially changed. The Employment Tribunal considered the amendments, and found that the final version represented Professor Green's genuine conclusions after receiving honest and unbiased advice. However, the EAT was concerned about the conclusions which had been left out of the report, and it held that the Employment Tribunal should have asked whether Professor Green had actually changed his opinion, or had simply omitted it, and if so, why. If Professor Green had omitted significant opinions which he held from his final report, the Employment Tribunal should have asked whether it was reasonable for the university to dismiss in circumstances where conclusions which had been favourable to Dr Dronsfield had been excised from the investigation report. The case was remitted to a fresh tribunal to consider.
What does this mean for employers?
Last year, we reported on Ramphal, another case which looked at HR's involvement in the disciplinary process – please see our October alert here. It is important that any investigation report is genuinely the work of the investigating officer, and reflects his or her judgement. HR's role is essentially supportive, and HR should be careful of straying beyond advice on questions of law, procedure, process and precedent. Employers should consider making amendments to drafts under legal privilege. However, even when this is done, it is important that the investigating officer can explain any amendments that have been made following a review, and stand by them.