Make sure that they follow these steps to avoid getting it wrong and
exposing your school to employment claims
Dealing with staff discipline can
be stressful and time consuming
for the individual responsible
for managing the process.
Those with less experience of
the processes often look for
support from HR to help them to
understand what is required and
to reach fair decisions.
A recent case Ramphal v
Department for Transport
provides some salutary guidance
about what HR can and cannot
do in these circumstances.
The facts
Mr Ramphal’s job involved a lot of travel. He
was supplied with a hire car and a company
credit card which he could use to pay for fuel
and other expenses.
A routine audit highlighted 50 concerns about
his expenses; these were all investigated by
his line manager who accepted Mr Ramphal’s
explanations. There was then a further audit
and four further concerns were identified. A
manager called Mr Goodchild (who had no
prior experience of disciplinary investigations)
was appointed to investigate and determine
if there was a case to answer. He did his best
and produced for HR’s approval a report which
concluded that Mr Ramphal’s explanations
for his expenditure were “consistent” and
“plausible”. He considered that the most
appropriate course of action was a warning for
misconduct.
The HR department set to work on the report
and over a staggeringly long five month
period, the report metamorphosed into finding
that Mr Ramphal had been dishonest and
it was appropriate to dismiss him for gross
misconduct. Mr Goodchild, presumably buoyed
up with confidence, went ahead and dismissed
Mr Ramphal who promptly claimed that he had
been unfairly dismissed.
Decision
Although the Employment Tribunal initially,
found that the dismissal was fair, the
Employment Appeal Tribunal referred the case
back to the Tribunal to find out what happened
between the first and final draft versions of the
report.
The Tribunal will have to determine if HR’s input
“strayed” from providing advice on the law or
procedure to be followed (which is permissible)
or if they influenced the decision (which is not).
If the Tribunal finds that the decision to dismiss
was not Mr Goodchild’s alone, the dismissal is
likely to be found to be unfair.
Lessons for schools
Do:
- Remember that the school will be required to
disclose all correspondence (including drafts of
reports or letters) if you receive a legal claim
because correspondence between your HR
professional and the school does not attract legal
privilege BUT correspondence between the school
and your solicitor does. In complex or contentious
cases, it is therefore a good idea to involve a
solicitor at an early stage, as any advice given will
not have to be disclosed to the employee or their
legal advisors.
-
Ask HR to set out the relevant legal issues the
investigator or disciplinary manager should
consider before they start the process and the
sanctions that might be appropriate (and have
been given in other similar cases).
-
Ask HR to give advice on the law and procedure to
be followed – such as who it might be appropriate
to interview, the burden of proof and how to record
the findings.
-
Ask HR to put all of their advice in writing, that way
you will have evidence to demonstrate that they
did not cross the line between what is and is not
acceptable.
-
HR can review the investigation report to make
sure that the investigating officer has asked all
relevant questions. If something has been missed
(particularly if it might affect the decision), it
is perfectly permissible to ask the investigating
officer to re-consider and re-interview witnesses
or interview new witnesses. It is also fine for HR to
ask the officer to explain their thought process or
conclusions if their rationale is unclear.
-
Involve the local authority if it is a maintained
school and dismissal might be the outcome of any
disciplinary process. Remember that the letter of
dismissal must be written by the local authority.
-
Provide training to all staff who might be asked
to investigate or hear disciplinary matters. A lot
of potential problems with investigations (e.g.
incomplete reports, inconsistencies in the approach
taken to investigations and the burden of proof)
can be avoided if those who are carrying out
investigations have been properly trained and
understand what they have to do.
Don't:
- Allow HR (or anyone else) to alter a report or make the decision about the correct outcome or give the impression
that it has done so!
- Remember all correspondence with HR does not have legal privilege so it is disclosable.
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