“I am the HR Manager at a large company with a dedicated HR function with 5 team members. We are currently assisting management on handling a sensitive disciplinary investigation which is likely to lead to a disciplinary hearing. I have been asked if I can chair the disciplinary hearing, as management don’t feel they have the necessary experience with employment law or process. I am reluctant to step into a decision-making role. How do I handle it?”

 You are right to exercise caution. The proper role for Human Resources in the disciplinary process has been considered by the courts and tribunals on several occasions, with three cases in particular giving useful guidance.

The first, Chhabra v West London Mental Health NHS Trust reached the Supreme Court, who considered the role of HR in the investigation of alleged breaches of patient confidentiality. Recognising that employees have an implied contractual right to a fair disciplinary process, the Supreme Court found that this right had been breached when the investigator’s conclusions had been extensively altered by an HR adviser to make the report’s findings more critical of the employee. The Supreme Court decided that the employer could not proceed to a disciplinary hearing based on the modified report.

This case was followed by Ramphal v Department for Transport, whichinvolved a dismissal for misuse of a company credit card to pay for travel expenses. The manager appointed to conduct the disciplinary process had never handled a disciplinary issue before, and was heavily guided by HR. After the original unfair dismissal claim was dismissed, the Employment Appeals Tribunal identified a number of issues with the role played by HR in the decision to dismiss. Having reviewed the case documents, the EAT noted that the manager’s initial decision changed during his communication with HR, and they concluded that HR’s role had gone beyond its proper limits, which were advising the manager on procedure and the appropriate sanctions available to him.

In the third case, Dronsfield v University of Reading, an employee was dismissed following an investigation into improper conduct, where the investigation report was jointly prepared by the investigating officer and HR. The Employment Appeals Tribunal noted that it was not “normal practice” for HR to have more than an “essentially supporting” role in the process.

While these cases all involve the investigative stage, and you have been asked to chair the disciplinary hearing itself, we can extract several relevant points. These cases are linked by criticism of HR where their role moves from an advisory into a decision-making capacity. However, they do not amount to an outright prohibition of HR taking on a decision-making role at all.

Therefore, whether you can fairly chair the disciplinary hearing will depend on several factors:

1. You say that “we” have assisted with the investigation already. If you personally have assisted management with the investigation, it would not be appropriate to conduct the disciplinary hearing itself. However, if by “we” you mean someone else in the HR team, and you have not been involved at all, you could still chair the hearing.
2. If you are appointed as the decision maker, you will not be able to advise management on the wider process, likelihood of appeal, risks etc, as you otherwise would as the HR Manager. Your involvement would have to be limited to the hearing and your decision.
3. You would need to ensure that your decision is clearly your own, and not a product of input from the HR team as a whole.
4. Anything in your disciplinary policy which would prevent HR from acting in this capacity.

In short, assuming that you personally have not already been involved in the investigation, you could chair the disciplinary hearing so long as your role is clearly defined. You would need to consider whether the wider HR team has the necessary experience to support management through the process without your involvement.

It is always important to remember that the overall fairness of the disciplinary process is paramount, given its status as an implied contractual right, and that the courts and tribunals have been willing to carefully scrutinise the remit and role of HR in reaching disciplinary decisions. Given the concerns about lack of experience, an alternative solution might be to appoint an external HR consultant to handle the disciplinary hearing for you.