Last September, we reported on the case of Ramphal v Department for Transport in which a manager who investigated and reported on allegations of misconduct against an employee revised his report several times, after involvement from HR. The Employment Appeal Tribunal (EAT) found that there had been an inference of improper influence and emphasised that any input from HR should not go beyond the scope of questions of law, procedure and process. You can find our previous article on this case here.
In the recent case of Dronsfield v University of Reading the EAT again considered the influence of HR on the decision to dismiss an employee.
This case concerned an Associate Professor at the University of Reading, Dr Dronsfield, who was dismissed for gross misconduct for failing to report a sexual relationship he had with one of his students (contrary to University guidance).
A complaint was received from the student’s ex-boyfriend, and another professor was appointed to investigate, along with a member of the HR team. They produced a joint investigation report which was reviewed by the University’s in-house employment solicitor. Following this, a number of redactions were made to the report – the passages in the report which were redacted had been favourable to Dr Dronsfield.
A disciplinary panel was appointed to consider the allegations and, following a hearing, Dr Dronsfield was dismissed. He appealed, but this was rejected and he brought a claim in the Employment Tribunal (ET) for unfair dismissal.
The ET found that Dr Dronsfield had been fairly dismissed. The ET accepted that the final version of the report, which the investigating professor had signed off in good faith, contained his genuine, personal view and findings. The ET found that the advice he had received was not improper or biased.
Dr Dronsfield appealed to the EAT. The EAT noted that a number of findings which were favourable to Dr Dronsfield had been omitted from the investigatory report, following discussions between the investigating professor, the member of the HR team and the in-house lawyer. The ET had not considered whether the investigating professor had changed his opinions or simply removed them from the report, and why. The ET should have considered whether it was reasonable for the University to dismiss Dr Dronsfield, given the redactions from the report.
The case was sent back to the ET to consider the issue unfair dismissal afresh.
In its judgment, the EAT noted with surprise that the investigation report was a joint report between the investigating professor and HR partner. The EAT did not specifically refer to the Ramphal case, however agreed with the principle that an investigating officer should be responsible for his own report. The EAT also commented that it would have been good practice in this case for the student to have been contacted as part of the investigation to see whether she wanted to contribute to it.
This case again highlights the risks for HR practitioners of straying from a supportive role, advising on process and procedures, into influencing the investigator’s decision on culpability.
If you are dealing with a tricky disciplinary or grievance situation and are in doubt, then we can help. Our advice is covered by legal professional privilege, meaning that it would not be included in the evidence if you end up in court or Tribunal (you can find our previous article on privilege here). We have years of experience in advising on all kinds of tricky issues and a quick call to us could help you avoid an expensive claim.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).