24 August 2016

In the recent Employment Appeal Tribunal (EAT) case of Dronsfield v University of Reading the difficult line which HR and in-house legal professionals must tread when dealing with disciplinary matters was considered.

Dronsfield was a professor at Reading University, and was bound by the university’s policies and procedures, one of which dealt with personal relationships between staff and students. The guidance provided that any member of staff in a personal relationship with a student should inform the university in order that it could make arrangements to ensure that the assessment of the student in question would be unbiased. Dronsfield failed to comply with this guidance and did not disclose a sexual relationship with a student. As a result, after being subjected to a disciplinary process, he was dismissed summarily (in other words, without notice). He claimed unfair dismissal.

An Employment Tribunal found that his dismissal was fair. This was overturned by the EAT on appeal by Dronsfield. The EAT found that an investigatory report produced as part of the disciplinary process had been heavily influenced and amended by the university’s HR and in-house legal departments. The EAT held that the final version of the investigatory report omitted various findings which were favourable to Dronsfield and that these alterations were made following the HR and in-house legal teams’ involvement.

Although the author of the report had signed it off, the EAT felt that standards of objective fairness had been compromised and that the Employment Tribunal had failed to consider properly why the author had changed his view on Dronsfield to his detriment. The case was sent back to the Employment Tribunal to decide whether it was reasonable to dismiss Dronsfield in all the circumstances.

HR and in-house legal teams often provide detailed support and guidance to managers who have been asked to handle disciplinary investigations and hearings. There is nothing improper about this from a practical perspective. However, decisions or recommendations that the manager handling the investigation or disciplinary hearing makes must be his or her own. Where any report produced is subsequently altered following input from HR or legal advisors, an employer would have to be able to show a court or tribunal a clear justification for those changes if the employee decides to challenge the outcome of the disciplinary process. Care is needed where decisions have been changed following new information or arguments, which information or arguments were not put to the employee. The rules of natural justice should be followed.

This case should be read alongside other recent case law that considered HR’s remit in disciplinary procedures, in particular the decision in Ramphal v Department for Transport. In that case, the EAT reaffirmed its view that HR’s role should be limited to matters of law and procedure in disciplinary matters. It should always be for the investigating manager to make up his or her mind about the appropriate action in any given case and care should be taken to ensure that any report demonstrates the independence of the manager’s decision.

It goes without saying that if there are multiple versions of documents which say different things, an Employment Tribunal will scrutinise the evidence carefully to ascertain why the changes were made and who asked for them. BTO’s employment team run training sessions for Boards and managers to help deal with disciplinary and grievance hearings. These are practical sessions. We look forward to helping you!

Contact: David Hoey, Partner dho@bto.co.uk  T: 0141 221 8012

Link: Employment Appeal Tribunal (EAT) case of Dronsfield v University of Reading