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Employment News In Brief January 2016

HR Involvement in disciplinary issues

Businesses will welcome helpful guidelines provided by the Employment Appeal Tribunal (EAT) on how much involvement and influence HR should have in disciplinary investigations. What is crucial is that HR limits advice to questions of law, procedure and process, and avoids straying into areas of culpability. In particular, HR should not advise on what an appropriate sanction should be, outside of addressing issues of consistency.  Significant influence by HR in the outcome of an investigation could potentially compromise the fairness of the investigation process and result in an unfair dismissal.

In this recent case, the EAT allowed an appeal where the investigating officer’s recommendations had been heavily influenced by input from HR.  The investigating officer’s report originally recommended a finding of misconduct and a sanction of a written warning, but after numerous comments and amendments by HR, the final report found the employee to have committed gross misconduct, and recommended immediate dismissal.

Treating two employees differently on disciplinary sanctions

The EAT has revisited the guidance on when it is appropriate to consider disparity of treatment between employees in similar circumstances. 
In this case, two employees had been found guilty of gross misconduct for their involvement in the same incident, although one was dismissed and the other was not.  The tribunal found that the difference in sanction was unreasonable and that the employer had applied a “defence of provocation” differently between the two employees.  These differences rendered the dismissal unfair.  The EAT clarified that in such cases, the relevant question is still whether the employer has acted reasonably towards the employee who has been dismissed, regardless of what sanction has been applied to the other. Disparity of treatment will occasionally be relevant to reasonableness, but the circumstances need to be “truly parallel”.  With respect to provocation, the EAT said that there is no such “defence” and that provocation would only be a mitigating factor, to be weighed by the employer.