The role of HR and Legal Advisors in an Investigation

We’ve had a run of cases where the courts have been considering what the appropriate roles are of those who may be involved in an investigation process.  The first case to be aware of was that of Chhabra v West London Mental Health NHS Trust [2013].  The Supreme Court (used to be the House of Lords) considered the extent which a Human Resource department could permissibly influence a disciplinary investigation.  Lord Hodge said “there would generally be no impropriety in a case investigator seeking advice from an employer’s human resources department, for example, on questions of procedure.  I do not think that it is illegitimate for an employer, through its human resources department or similar function, to assist a case investigator in the presentation of a report, for example, to ensure that all necessary matters have been addressed and achieve clarity”.  However, in that case substantial alterations had been made to an investigatory report that went far beyond clarification with the result that the court felt it no longer was the true product of the investigating officer.

We then had that case being considered in the case of Ramphal v The Department of Transport where the Employment Appeal Tribunal (EAT) considered whether a disciplinary investigation had been heavily influenced by HR resulted in the subsequent dismissal being rendered unfair, the EAT considered that the Chhabra case effectively established an implied term that the report of an investigation officer for a disciplinary enquiry must be the product of their own investigations.  Again the intervention of HR to influence the extent to which somebody was found to be culpable involved HR overstepping the mark, the changes that had been made because of HR’s input were so striking they gave rise to an influence of improper influence.  Again they emphasised that the investigating officer is entitled to call for advice from HR but HR must limit that advice to questions of law and procedure and process and avoid straying into areas of culpability.

Thus HR should not be advising on what the appropriate sanction should be, outside of addressing issues of consistency.  Thus those working in HR need to be very careful to frame their answers to the natural questions that they are asked by those who are conducting investigations or arriving at disciplinary decisions as a matter of course.  You might have to preface what you say with “of course it’s down to you to make a decision, but you may like to think about XYZ”.  Too much influence by HR can potentially tip a case into unfairness.

This has come up again in Dronsfield v University of Reading case involving a dismissal of a professor from the University.  The head of one of the University schools was appointed as the investigator with the support of a HR partner they wrote a joint investigation report into an allegation that the professor concerned had had a personal relationship with a student.  Initial drafts of the investigation report were passed by both the HR department and the in-house lawyer.  The final version omitted a number of findings that would’ve been favourable to the professor.  The professor challenged the dismissal so the changes that had been made to the investigation report became part of the arguments in the case.  The tribunal were able to see that the investigator hadn’t actually changed his opinion about the relevant issues, in fact his opinions had been deleted from the final report criticising the way that this had been done. The EAT was critical of the report being produced as though it was the joint responsibility of the professor and HR – there was a clear view it should’ve been the investigator only.

I’m mightily aware of the fact that the judges making these decisions are somewhat unrealistic about the level of support and guidance which line managers often require from HR and these decisions do put HR in quite an invidious position, the moral of the story is to perhaps make comments and suggestions but to bat it back to the investigating officer requiring them to make any amendments themselves, having then considered any questions and feedback that you may have given.