There is no necessary reason why the relationship between union reps and HR advisers (a subset of the wider HR profession) should be antagonistic. If the purpose of a HR adviser is to advise on HR policies and employment law then, while clearly not singing off the same hymn sheet, there is a significant degree of overlap with the work of the union rep.

The reality, in my experience, is somewhat different. I have seen many cases where HR advisers have directly contributed to the decision on an individual’s culpability, even going so far as to record in the minutes that the decision on the case outcome will be one made by the HR adviser. Where, as the case in civil service departments, HR departments are tasked with reducing civil service headcount that fact places the integrity of disciplinary processes in doubt as such processes provide the opportunity to lose some staff from the books who would otherwise not be dismissed.

The recent case of Ramphal v Department For Transport is a useful reminder that HR advisers must not stray into the realm of assessing an employee’s culpability in misconduct proceedings and, if they were to do so, this may make a dismissal unfair. This was a case in which an inexperienced manager in the Department of Transport was asked to investigate a potential case of gross misconduct and, if necessary, hear the the formal disciplinary hearing (that joint role, aside from anything else, strikes me as a potential ground making a dismissal unfair but, strangely, this was not an issue in the case).  The manager made preliminary findings found in a draft report that concluded that the claimant was likely to be guilty of misconduct but it did not amount to gross misconduct, a draft of this report was commented on by HR and the end result in the final report was drastically different from the managers preliminary findings and made a finding of gross misconduct – the claimant was thereafter dismissed for gross misconduct. This represented undue and illegitimate lobbying by HR advisors that was likely to make a dismissal unfair. In two passages the EAT gave what are helpful judgements that can be relied upon by reps where they encounter an ‘overkeen’ HR adviser.

At paragraph 55:

In my opinion, an Investigating Officer is entitled to call for advice from Human Resources; but Human Resources must be very careful to limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability, let alone advising on what was the appropriate sanction as to appropriate findings of fact in relation to culpability insofar as the advice went beyond addressing issues of consistency. It was not for Human Resources to advise whether the finding should be one of simple misconduct or gross misconduct.

And, at paragraph 56:

I consider that an employee facing disciplinary charges and a dismissal procedure is entitled to assume that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability, and that he should be given notice of any changes in the case he has to meet so that he can deal with them, and also given notice of representations made by others to the Dismissing Officer that go beyond legal advice, and advice on matter of process and procedure.

This is I think a helpful reminder that the HR adviser’s job is to advise a decision maker on law, and employer policies and procedures, and that where they stray into decision making mould (as, unfortunately, some like to do) they may be acting inappropriately.

 

Cases Referenced:

Ramphal v Department For Transport [2015] UKEAT 0352_14_0409