How far does the role of HR stretch in advising on disciplinary procedures?

Transcription

1 Hw far des the rle f HR stretch in advising n disciplinary prcedures? The Emplyment Appeal Tribunal prvided guidance in the case f Ramphal v Department f Transprt. The Case: The Claimant, Mr Ramphal wrked fr the DfT as a cmpliance inspectr, which invlved substantial travel. Fllwing a randm audit int expenses, his line manager did nt feel that further investigatin was necessary. Hwever, anther manager in the business, Mr Gdchild, was instructed t carry ut a further investigatin int Mr Ramphal s expenses and carry ut a disciplinary hearing, if necessary. Mr Gdchild had limited experience in dealing with such issues and relied heavily n HR fr advice. Fllwing a disciplinary hearing, the first draft f Mr Gdchild s reprt was balanced and made several findings in Mr Ramphal s favur, including his plausible explanatins and that the misuse f hire cars had nt been deliberate. He recmmended a finding f miscnduct and a final written warning. Fllwing varius meetings with HR, Mr Gdchild, in his final draft reprt had remved the favurable cmments and the recmmendatin became ne f grss miscnduct and summarily dismissal, but withut any additinal evidence r infrmatin. Mr Ramphals was subsequently dismissed and whilst the Emplyment Tribunal nted the lax prcedures fund that the dismissal was fair. Mr Ramphal appealed t the EAT. Decisin: The EAT fund that HR had significantly verstepped the permitted bundaries f prviding advice limited t the prcess and prcedure. They said that their advice had in fact led t a misshaping f Mr Gdchild s views which changed his findings n culpability and credibility, Page 1 f 6

2 which the EAT fund disturbing. The EAT fund that there was n fresh evidence r new material t explain the change in Mr Gdchild s psitin and therefre drew an inference f imprper influence by them. The EAT remitted the case back t the same Emplyment Tribunal, hwever they prvided sme useful guidance fr HR prfessinals: An investigating/ disciplinary fficer is entitled t ask HR fr advice, but HR must be very careful t limit advice essentially t questins f law and prcedure and avid straying int areas f culpability HR can advise in respect f cnsistency but must nt advise n what the apprpriate sanctin in respect f the decisin makers findings f fact it was nt fr HR t advise whether the finding shuld be ne f simple miscnduct r grss miscnduct They als went n t say that an emplyee facing disciplinary charges and a dismissal prcedure is entitled t assume that the decisin will be taken by the apprpriate fficer, withut having been lbbied by ther parties as t the findings he shuld make as t culpability Practical Implicatins: HR managers r advisrs need t be extremely cautius in the advice they give as they ften g beynd the bundaries. It is easy t be tempted t guide a disciplinary fficer n the utcme, ften seeing it as part f their rle. Hwever, it is imprtant t remember that the decisin must be that f the decisin making fficer, they will be the ne t give evidence, n ath, as t why they made the decisin they did. If HR stray t far int the decisin making prcess, it may render any subsequent dismissal unfair. Emplyers shuld als remember that draft reprts/crrespndence/ s relating t advice between HR and the dismissing fficer are disclsable in any subsequent Tribunal claims. Hwever, draft reprts/crrespndence/ s prduced fr the purpses f seeking advice frm a qualified lawyer (but nt HR), then the cntents f that advice will be privileged and nt seen by the Tribunal. Privileged advice may have avided the difficulties faced by the emplyer in this case Page 2 f 6

3 Withdrawal f jb ffer was nt disability discriminatin It is nt unusual fr an emplyer t ask a ptential applicant fr a rle t cmplete a medical questinnaire prir t beginning the said rle. Hwever, hw des an emplyer avid a disability discriminatin claim when a medical cnditin is revealed n the applicatin frm which is likely t impact n the ability f the ptential recruit t carry ut their rle? In Crry v Merseyrail Electric 2002 Ltd, Merseyrail fund itself in a psitin whereby it withdrew an ffer t a jb applicant whse rle was t wrk at a railway statin. The reasn fr the withdrawal was due t health and safety cncerns ver his epilepsy. Mr Crry was ffered a jb wrking in a railway statin, cnditinal n passing a medical. His CV stated that he suffers frm epilepsy. The pre-hire medical examinatin cncluded that there wuld be cncerns abut Mr Crry s ability t carry ut his rle given his epilepsy placed him at risk in respect f health and safety. The medical exam cncluded that while Mr Crry was fit t wrk, he shuld nt wrk alne, r be allwed t wrk trackside. Merseyrail cnsidered whether there were any reasnable adjustments that culd be made t allw Mr Crry t wrk hwever having balanced the cst and practicalities and the nature f the jb, it cncluded that that there were n adjustments that culd be made particularly when 90% f the jb invlved lne r trackside wrking. Merseyrail withdrew the jb ffer made t Mr Crry, wh brught a disability discriminatin claim. The Emplyment Tribunal dismissed Mr Crry s claims fr disability arising frm discriminatin and failure t make reasnable adjustments. The tribunal cncluded that the suggested adjustments were either prhibitively expensive r wuld nt necessarily reduce the safety risk. Suggestins included emplying a cmpanin fr him and deplying him in a large statin where assistance wuld be mre readily available during a seizure. Practical Implicatins The Tribunal came t its cnclusin because the emplyer shwed that it had turned its mind and given serius thught t Page 3 f 6

4 any reasnable adjustments that culd be made in rder fr Mr Crry t carry ut the rle safely. Dcument all cnsideratin t reasnable adjustments t evidence yu have thught abut it D cnsider pre hire medical exams and make sure the applicant knws that the rle is cntingent n passing medical examinatins. Service Change Prvisin In Inex Hme Imprvements Ltd v Hdgkins and thers, the Emplyment Appeal Tribunal (EAT) cnsidered whether there culd be a service prvisin change under the TUPE Regulatins where the wrkers carrying ut the wrk had been temprarily laid ff prir t the transfer f wrk frm ne cntractr t anther. terms f emplyment in limited circumstances. Service Prvisin Change There are three situatins where TUPE can apply in the cntext f a service prvisin change. These are (1) utsurcing where wrk previusly carried ut in-huse is cntracted ut, (2) secnd generatin utsurcing where wrk which is cntracted ut passes t anther cntractr, and (3) in-surcing where wrk previusly cntracted ut is brught back inhuse. The statutry cnditins fr a transfer t qualify as a service prvisin change are as fllws: The activities carried ut befre the transfer must be fundamentally the same as the activities carried ut after the transfer There must be an rganised gruping f emplyees whse principal purpse is t carry ut the relevant activities fr the client The transfer f activities is nt intended t be fr a single specific event r task f shrt duratin The activities d nt mainly cnsist f the supply f gds TUPE Where TUPE applies t a business transfer r service prvisin change, the new emplyer takes n the transferring emplyees n their existing terms f emplyment, and can nly make changes t their Page 4 f 6

5 The Facts In this case, the Claimants wrked n painting and decrating cntracts which were subcntracted t the Respndent. Between ne cntract and the next cntract there was n wrk fr the emplyees t carry ut s they were temprarily laid ff under a wrking agreement. Unfrtunately, the next cntract was nt awarded t the Respndent but t anther cntractr. The questin fr the tribunal was whether there had been a service prvisin change at this stage. The Emplyment Judge cnsidered that because the emplyees had been laid ff befre the transfer, there was n rganised gruping f emplyees. Therefre, it was decided that there was nt a service prvisin change. The Claimants appealed this decisin t the EAT. The Decisin The EAT lked t the purpse and bjective f the TUPE Regulatins and cited the main principle as being the prtectin f emplyment, as apparent in the Regulatins title. The EAT bserved that if the Emplyment Judge s ruling was crrect, then emplyers culd easily avid TUPE prtectins frm applying t a transfer by temprarily laying ff the wrkfrce prir t the transfer. Therefre, it was held that a temprary cessatin f activities carried ut by the wrkers shuld nt in itself prevent there being an rganised gruping f emplyees. Instead, a range f factrs must be cnsidered when determining whether there has been a service prvisin change, including any cessatin f wrk. The EAT cannt determine matters f fact; nly pints f law. Therefre, the case was remitted t the ET t cnsider afresh whether there was an rganised gruping f emplyees. Practical Implicatins Cases invlving TUPE transfers ften depend n their wn facts meaning that it can be difficult t say with certainty whether TUPE will apply. This case illustrates the curts willingness t lk t the intentin f the legislatin t prduce what is regarded t be the fair decisin in this case. In light f this apprach, where it is nt clear whether r nt TUPE will apply t a business transfer r service prvisin change, the safest ptin is t plan n the basis that TUPE des apply and factr in csts and liabilities n this basis. Page 5 f 6

6 Natinal Minimum Wage (Amendment) Regulatins 2015 in frce 1 Octber 2015 The Natinal Minimum Wage (Amendment) Regulatins 2015 (SI 2015/971) were made n 27 September 2015 and changed the rates f the natinal minimum wage in accrdance with recmmendatins frm the Lw Pay Cmmissin. The fllwing hurly rates f natinal minimum wage apply frm 1 Octber 2015: The standard adult rate (wrkers aged 21 and ver) is The develpment rate (wrkers aged between 18 and 20) is The yung wrkers rate (wrkers aged under 18 but abve the cmpulsry schl age wh are nt apprentices) is The rate fr apprentices is Frm 1 Octber 2015, the accmmdatin ffset is 5.35 each day Please nte: This publicatin des nt cnstitute legal advice DID YOU KNOW BACKHOUSE JONES PROVIDE THE FOLLOWING SERVICES: Mergers & Acquisitins; Cmpany dispsals; Management buy-ins / buyuts; Grup and Cmpany restructures; Jint Ventures; Investment and Sharehlders Agreements; Banking and Finance; Crprate Recvery; Cmpany Frmatins; Partnership and LLP advice & frmatin; Crprate Gvernance & Cmpanies Act cmpliance; Cmmercial Cntracts - Terms & cnditins, Supply agreements etc; Agency, distributin and franchise agreements; and Cmmercial Prperty Fr enquiries n all related matters please cntact: Backhuse Jnes Emplyment Team Steven Meyerhff T: steven.meyerhff@ backhuses.c.uk Page 6 f 6