What is the legal development?
Confirmation of the principal that HR advice should be limited to matters of law, process and procedure – avoiding comment on questions of culpability.
In a recent case the investigating officer’s initial conclusions were misconduct with a recommendation for a written warning. After numerous comments and amendments from HR, the offence became gross misconduct with a recommendation of summary dismissal. It was held that heavy influence by HR in the outcome of an investigation could compromise the fairness of the process and result in an unfair dismissal.
What does this mean in practice for employers?
When does advice and guidance become interference? HR professionals will be giving advice throughout an investigation and at times may be tempted to influence an investigation report and its conclusions. While they may ask questions about clarity, they should otherwise stand back and allow the investigating officer to reach their own conclusions.
HR may also need to advise on what might be a fair sanction in terms of consistency across an organisation, but great care needs to be taken not to go too far and be accused of interfering in the decision-making process or recommending an appropriate sanction.
Our comment
Not only must HR professionals tread a fine line when assisting with investigations and hearings, they also need to be conscious that any internal emails and all draft versions of the investigation report may have to be disclosed in subsequent tribunal proceedings (if these are just internal communications and not with a lawyer, they will not be protected by legal privilege). Employees are increasingly asking for full disclosure of such drafts and covering emails!