In Dronsfield v University of Reading the EAT looks at the involvement and influence of third parties such as Human Resources in disciplinary procedures.
Mr Dronsfield was a Professor at Reading University and whilst working for the University he engaged in a sexual relationship with one of his students. Reading University provided guidance to employees in relationships with students which required them to disclose the relationship to avoid any potential appearance of bias.
The policy stated: “A member of staff who is in a relationship with a student must not be directly professionally involved with assessing or examining that student …. The Head of Department, or the appropriate Dean, must therefore be informed…”
Mr Dronsfield did not disclose the relationship and continued to supervise the student in question during her dissertation. Although no allegations of bias were brought against Mr Dronsfield, he was summarily dismissed from his role. He submitted a claim for unfair dismissal.
The case progressed to the Employment Tribunal which ruled in favour of the Respondent. It was found that dismissal fell within the band of reasonable responses and the claim for unfair dismissal was accordingly dismissed.
Mr Dronsfield appealed the Employment Tribunal’s decision.
He argued that large parts of the report prepared by the investigatory officer had been omitted after advice was taken from a member of the Respondent’s Human Resources Department.
The parts of the report omitted were almost entirely complimentary to the Claimant and this omission had not been addressed by the Employment Tribunal when making its decision. Judge Richardson in the EAT commented specifically on the unusual level of involvement of the representative from HR, stating: “That is, in my experience, not normal practice”.
Judge Richardson found that the Employment Tribunal had erred in its approach as it had failed to address the reason for the changes to the investigatory report of the appointed officer. The ET ought also to have considered the implications on objective fairness given the level of external involvement of HR. The case has now been listed for rehearing before a different Tribunal.
This Judgment further reinforces the fact that the report of a rightly appointed investigatory officer must be his own. That is not to say that HR and in house legal teams cannot provide support and advice to the investigatory officer. However, when amendments and alterations are made to a report by someone other than its author these will be open to scrutiny and must be justifiable. It is not for the HR department to decide on the level of sanction (although HR advice might properly include an indication of the types of penalty available by way of disciplinary outcome).
We have had recent ET experience of precisely this sort of issue – where, on disclosure of documents, it became apparent that a third-party HR advisor had overstepped proper boundaries by saying, in effect, that the employer must dismiss the employee for gross misconduct. We successfully argued that the decision-making body (in the disciplinary process) had impermissibly delegated its discretion to the advisor.