Irwin Mitchell | Focus on Education | Do you use human resource professionals to help with staff discipline?

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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Do you use human resource professionals to help with staff discipline?

The facts

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Lessons for schools

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Do you use human resource professionals to help with staff discipline?

The facts

Decision

Lessons for schools

For general enquiries

About Irwin Mitchell

Contact Us

Get a call back