It is undoubtedly the case that HR professionals are an organisation’s ‘go-to’ people when there is a disciplinary situation. However, recent case law shows us why it is very important that you maintain proper boundaries when providing advice and support to your colleagues about procedures. In Ramphal v Department for Transport recently the Employment Appeal Tribunal dealt with a situation where the original employment Judge felt the HR department had inappropriately lobbied the dismissing officer as to the fault of the employee and the level of sanction to impose. The Judgment makes it clear that the role of HR should be explaining processes and procedures and the options open to the dismissing officer but HR should not be the ones actually making the decision. The Judge specifically said “an employee facing disciplinary charges and a dismissal procedure is entitled to assume that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings they should make as to culpability … and also given notice of representations made by others to them that go beyond legal advice, and advice on matters of process and procedure”.
You should therefore think very carefully when you are being leant on for a view on cases to make sure you preface any answers that you give with ‘of course this is a decision that you have to make’. For example, you may wish to advise on similar cases that you are aware of within the organisation and the issue of consistency, and you may also wish to advise on the definition of gross misconduct and the sorts of conduct which are appropriately deemed to be sufficiently serious to justify summary dismissal, but ultimately it is going to be for the decision maker to decide whether or not those definitions have been reached in a particular case and you should take care not to be seen to be lobbying for a particular outcome, even if you disagree with the way in which the decision maker is handling the case.