The Disciplinary Investigation Process - How far can HR get involved?
HR are often vital to a comprehensive disciplinary process, but how much involvement is too much?
Dronsfield v University of Reading hit the headlines recently. The Employment Appeal Tribunal (EAT) considered whether changes to an investigation report following HR’s advice could mean that a dismissal was unfair.
The facts of the case:
Dr Dronsfield was a university professor against whom allegations were made of an undisclosed sexual relationship with one of his students. A fellow professor was appointed to conduct an investigation into these allegations, assisted by HR.
The report initially contained statements of the investigating officer’s opinion, which were favourable to Dr Dronsfield. These were removed following HR’s advice. As a result of the investigating officer’s findings, a disciplinary hearing was held and Dr Dronsfield was dismissed. He subsequently brought a claim for Unfair Dismissal in the Employment Tribunal (ET).
The ET found the dismissal to be fair on the basis that the investigating officer had signed the final version of the report, confirming that it reflected his conclusions accurately. Dr Dronsfield appealed to the EAT.
The EAT found that the ET had asked the wrong question. They should not merely have considered whether the report reflected the investigating officer’s conclusions accurately, but also whether the investigating officer’s opinions had actually changed, or had simply been omitted, and if so, why?
The ET 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 removed from the report. It needed to consider the changes that had been made and how they had come about when considering if it had been reasonable for the University to decide that the employee's conduct met the standard required for dismissal.
The case was remitted for a fresh ET to consider (albeit on different grounds).
What does this mean for you or your business?
Central to this appeal outcome is the EAT’s criticism of the HR involvement that led to the removal of the investigating officer’s statements of opinion from the report. It is important that any investigation report is genuinely the work of the investigating officer, and accurately reflects their judgements and conclusions.
HR are there for administrative support and as a guide through the process, but cannot have an input in the report itself or its findings.
Disciplinary procedures should be clear and those undertaking disciplinary investigations must understand exactly what is required of them.
What do you need to be doing now?
Ensure that HR sit down with the investigating officer before they start to write the report and explain what it should include, and what it should not. Making this clear before it is drafted will reduce the temptation for HR to make amendments after it has been drafted.
Should amendments need to be made, let the investigating officer make them, ensuring that they can explain/justify any amendments made. If they are challenged on any changes at Tribunal they need to be able to convincingly and honestly explain those changes.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.
