In Shing v University of the Arts London, the claimant, a senior lecturer, was dismissed for gross misconduct following findings that he had engaged in an inappropriate relationship with a student. He subsequently brought claims for unfair dismissal and race discrimination. His race discrimination claims failed as the employment tribunal found the circumstances of the comparators he relied upon were materially different from his own.
The role of HR in disciplinary procedures
The claim of unfair dismissal also failed before the employment tribunal. On appeal to the Employment Appeal Tribunal (EAT), the claimant argued that the employment tribunal had failed to properly apply the principle set down in an earlier EAT case, Ramphal v Dept of Transport. The Ramphal case says, in apparently wide terms, that HR should not be involved in decision-making in a dismissal case. The claimant argued that HR had been improperly involved in the disciplinary process and had influenced the decision to dismiss in his case.
What did the EAT say about HR involvement?
The EAT concluded that the decision in Ramphal was not authority for the proposition that any intervention by HR in advising on a decision to dismiss rendered a dismissal unfair. Rather, it was that if "undue pressure" is placed on a decision-maker by HR (or indeed anyone outside of the proper process), that could, in appropriate cases, be weighed as a factor in determining fairness. The weight of the factor will depend on the facts and circumstances of each case. In the claimant's case, HR had drafted a letter for the decision-maker to send after he had decided he was going to dismiss. There was no undue pressure from HR.
The EAT also noted that advice from HR may play an important role in maintaining consistency between decisions. The example was given of HR advising on the concepts of misconduct and serious misconduct and the dividing line between them. Without advice of this sort, it would be difficult for a company to maintain consistency of application between different persons who carried out dismissals. However, "the contours of what is and is not permissible by HR in a dismissal case is however quite difficult and must be addressed on the specific facts of each case".
Practical lessons for HR
The EAT recognised that HR has a legitimate role in helping organisations achieve consistency of treatment across disciplinary cases. Advising a manager on how similar cases have been dealt with previously, or whether dismissal is likely to fall within the reasonable range of responses, is not inherently improper.
Many managers rely heavily on HR support when dealing with complex disciplinary issues. The EAT's judgment provides reassurance that such involvement is both legitimate and desirable, provided that the manager retains ownership of the decision. Far from being a passive observer, HR can play an important role in ensuring consistency, fairness and legal compliance. The critical safeguard is that the final decision remains the independent judgment of the manager tasked with chairing the disciplinary hearing.
