How far can HR advisors go in assisting a disciplinary investigation?
The Employment Appeal Tribunal (EAT) has revisited the issue of how far HR advisors can go in assisting a disciplinary investigation in the case of Dronsfield v University of Reading (2016).
Dr Dronsfield had a relationship with a student. The University had specific guidance on staff/student relationships, due to the duty of care owed to students and in order for staff to maintain professional boundaries. Following a complaint, Professor Green was appointed to investigate the matter. Dr Dronsfield admitted the relationship, expressed his regret, and put forward mitigation. Professor Green’s report was redrafted a number of times with various passages favourable to Dr Dronsfield removed following advice from HR and an in-house lawyer. Eventually, Dr Dronsfield was dismissed.
The Employment Tribunal (ET) held the dismissal to be fair. It accepted that the report was Professor Green’s genuine and personal view and that there was nothing improper or biased in the advice he received. The ET examined the various drafts of the report, but internal legal advice was privileged and was not put before the ET. Dr Dronsfield appealed.
The EAT Decision
The EAT noted that a number of important passages which favoured Dr Dronsfield had been removed from the report, and held that this approach was unfair. The ET should have asked if the Professor had changed his opinion, or if it had been simply omitted, and if so why; and whether it was reasonable for the University to dismiss the doctor in circumstances where important conclusions, which were favourable to the doctor, had been removed from the report. The case was remitted to a fresh tribunal to consider these issues.
The EAT agreed with the decision of Ramphal v Department for Transport (2015) that an investigating officer is responsible for his own report and HR essentially play a supporting role. In Ramphal, the EAT held that the HR advisors had strayed too far from giving advice on law and procedure into questions of blame and culpability (see our blog: How far is too far: The risks of giving HR advice on disciplinary procedures?)
Practitioners need to be careful when assisting an investigating officer whose report strays into opinions and conclusions rather than findings of fact and recommendations. Whether an investigating officer is simply inexperienced, or has too many calls on their time, their HR manager will often have to guide them not only on procedure but also give the benefit of their experience on reaching conclusions and weighing up the evidence. The investigating officer needs to be satisfied that the final report reflects their views, is even-handed, and any significant changes can be justified.