Wednesday, 28 October 2015 11:25

Investigation influenced by HR may be unfair (case law October 2015)

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The Case:

Mr R was employed by the Department of Transport and spent a lot of time out on the road.  He had a company credit card to pay for hire cars and company related expenses.  He was not allowed to use the credit card for personal expenses. 

 

The Investigation:

Mr R was investigated for excessive use of the credit card including high petrol use and a hire car for personal use. 

 

The initial investigation reported that Mr R had been misusing the credit card but stated that it was not deliberate and his reasons were consistent and plausible.  The report recommended an outcome of misconduct and a final written warning. 

 

HR’s Influence:

A member of the HR team reviewed the report and over a significant period of time, comments and amendments were made which included the removal of some favourable comments.  The final report then recommended that Mr R be found guilty of gross misconduct and summarily dismissed.  This action was carried out by the chairperson of the disciplinary hearing. 

 

Employment Tribunal:

Mr R raised an employment tribunal against the company but lost his case. 

 

Employment Appeal Tribunal:

Mr R then appealed to the Employment Appeal Tribunal (EAT).  The EAT held that the report of an investigating officer must be the product of their own investigations. Although a dismissing or investigating officer is entitled to seek guidance from HR, such advice should be limited to matters of employment law and procedure (as opposed to matters of culpability). HR is allowed to assist the investigating officer in the presentation of their report, but only for example by ensuring that all necessary matters have been addressed and to achieve clarity.  All decisions must be made by the investigation officer and the chairperson of the disciplinary hearing.  Mr R won his case. 

 

What you should do:

When you seek advice from our HR consultants, we will advise you on the disciplinary procedures that need to be followed, letter writing to ensure all details are correct, suitable outcomes and any potential problem areas.  We will always highlight any employment law concerns and clarification can be sought from our employment lawyer if required.  The final decision on any dismissal will be made by you, the employer. 

 

Read 1985 times Last modified on Thursday, 26 November 2015 14:14

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