The role of HR officers in disciplinary and appeal hearings
We are often asked if there is a requirement for different HR officers to attend the disciplinary and appeal hearings, or can the same HR officer attend both? And if they do, does this adversely affect the need to be impartial?
Going back to basics, we know that when a tribunal considers whether the dismissal of an employee is fair or unfair:
- It is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal.
- To be potentially fair, the reason (or principal reason) shown by the employer must be either:
- capability or qualifications,
- conduct,
- redundancy,
- contravention of a statutory restriction; or
- “some other substantial reason” (SOSR) of a kind justifying the dismissal of an employee holding the position which the employee held.
An employer must also show that, in the circumstances (including the size and administrative resources of the employer’s undertaking), the employer acted reasonably in treating the employee’s conduct as a sufficient reason for dismissal. This aspect of fairness is generally divided into two parts:
- Did the employer follow a fair procedure?
- Did the employer act reasonably in treating the reason as a sufficient reason for dismissal.
The Acas Code of Practice on Disciplinary and Grievance Procedures (Acas Code) is relevant in considering both procedural and substantive fairness, in cases to which it applies.
The Acas Code states that the appeal should be dealt with impartially and, wherever possible, by a manager who has not previously been involved in the case.
The non-statutory Acas guide to discipline and grievances at work, says that wherever possible the appeals procedure should provide for the appeal to be heard by someone senior in authority to the person who took the disciplinary decision and, if possible, someone who was not involved in the original hearing or decision.
However, there is nothing in the Acas Code that requires the use of an HR officer at a disciplinary or appeal hearing, and the Acas Code is silent on what the role of such an officer might be.
So, if an employer intends that an HR officer attend a disciplinary and appeal hearing, they should consider what their role at those hearings should be.
A member of the HR department would typically be present at a disciplinary or grievance hearing, eg to take notes – something anticipated by the Acas code.
If the role of the HR officer is simply to taking notes (and nothing more), then the attendance of the same HR officer at both the disciplinary and appeal hearings is unlikely to affect impartiality.
However, if the HR officer is (or is perceived to be) involved in the actual decision-making process, impartiality may be affected. In that case you need to apply the same considerations as for the decision-making manager, as their attendance at both hearings could give rise to questions about whether the process is in fact impartial.
Furthermore, circumstances may arise during the process, where the HR officer becomes involved in the case. For example, the employee raises questions about notes the HR officer has taken at the initial disciplinary hearing. In this scenario, it may also be appropriate to appoint a different HR officer to attend the appeal hearing. Clearly the more resource available to an employer the easier this is to achieve.
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