Staying in Lane: HR’s role in disciplinary decision-making

When employment tribunals assess claims of unfair dismissal, the primary focus is on the state of mind of the decision-maker at the time the dismissal was made. It’s therefore essential that employers can clearly identify who that decision-maker is, ensure they are properly equipped for the role, and allow them to reach their own conclusions independently.

Clarity from the outset

From the beginning of any disciplinary process, employers should confirm:

• Who the decision-maker is;
• What information they are relying on; and
• Whether any other individual is unduly influencing the process.

If a disciplinary outcome reflects input from multiple sources, those individuals may be treated as joint decision-makers. This opens the door to greater scrutiny of their individual motivations and conduct.

HR’s role: support, not control

HR professionals play a crucial role in disciplinary processes, but it’s important that they stay in their lane. Their involvement should be advisory – focused on procedure, law, and consistency – not on determining culpability or sanction.

In Ramphal v Department for Transport, the Employment Appeal Tribunal found that HR had overstepped. Initially, the disciplinary officer had concluded that the employee’s conduct was not deliberate and did not warrant dismissal. After intervention from HR, the findings were changed, and the sanction upgraded to summary dismissal. The EAT found this inappropriate, stating:

• HR advice should be limited to law, procedure, and consistency, not culpability or sanction.
• An employee is entitled to assume the decision will be made by the appointed officer.
• If others unduly influence the outcome without the employee’s knowledge, the dismissal may be unfair.

Guidance – Not interference

This doesn’t mean HR must sit silently on the sidelines. In the recent case of Alom v Financial Conduct Authority, the tribunal found no issue with HR providing a script to the disciplinary officer, even though it suggested what lines of enquiry to follow. The officer remained the final decision-maker, and the dismissal was upheld as fair. The case confirmed that scripts can be a helpful tool, provided they support structure and ensure procedural fairness, without dictating the outcome.

Practical tips for HR

To avoid the risk of being seen as a joint decision-maker:

• Clarify roles at the start of the process – in writing where possible.
• Advise on consistency, process and policy – not on what the outcome should be.
• Avoid drafting findings of culpability or sanction.
• Coach the decision-maker, but don’t direct them.

Speak to Jon Dunkley

Jon is a Partner at Wollens and can advise you. Contact Jon via email jon.dunkley@wollens.co.uk or call 01271 341021.

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