It can often be very difficult for small businesses to deal with disciplinary issues in accordance with the ACAS Code of Practice which advises employers to ensure that, where possible, there is someone independent and impartial to deal with each stage of the procedure, from investigation right through to an appeal. As a result, in many cases employers will look to engage independent HR consultants to deal with all or part of the process. Whilst the consultant will bring the benefit of impartiality and experience to the process, there is still the issue of whether the business is willing to give them authority to dismiss an employee or otherwise or whether the same person in the company will have overall control of the process.
The Employment Appeal Tribunal was given the task recentlyof determining whether or not it is fair to dismiss an employee on the recommendation of an HR consultant engaged to deal with the process. In GM Packaging v Haslem, an HR consultancy firm was appointed by the Managing Director and sole shareholder of the company following a disciplinary investigation in respect one of its 9 employees who had allegedly been engaging in sexual activities on company premises and was also recorded on a dictation machine speaking in derogatory terms about the Managing Director. The employee was dismissed following a disciplinary hearing with the external HR consultant (who obtained the Managing Director’s authority to dismiss) and subsequently appealed his dismissal. His appeal was investigated and conducted by a different HR consultant (employed by the same company) and was rejected, again with the Managing Director’s authority.
When the case was first brought to an employment tribunal, it was argued that since the authority of the Managing Director was required before the dismissal and appeal outcomes recommended by the HR Consultants were sanctioned, it was the Managing Director’s reason for dismissal that must be ascertained. The tribunal rejected submissions that the whole process was flawed because the Managing Director was ultimately responsible for both the disciplinary and appeal stages and held that based on the size and administrative resources of the company and given the senior position of the employee in the company, the actions taken to deal with the disciplinary proceedings against the employee were reasonable. However, the tribunal went on to find that the principal reason for the dismissal was the finding that the employee had engaged in sexual activity at work and that dismissal for this reason alone did not fall within the ‘band of reasonable responses’ to be considered as gross misconduct.
However, when the case was subsequently referred to the Employment Appeal Tribunal it was decided that it was quite clear that although this was cited as the principal reason, the derogatory recordings and general disregard from the Managing Director were in the minds of those responsible for the dismissal and appeal and when considered together (as was quite clearly the case at each stage), the employee’s dismissal could be considered as fair.
This case demonstrates that for small employers, engaging HR consultants can be an effective way of dealing with the process fairly, especially as many managers will have had no prior experience. As always, every case will turn on its own facts, however, provided a full and proper investigation and necessary hearings have been conducted by the externally appointed consultants, there will be strong grounds to show that the decision reached was fair and the employer can rely on their findings. However, although some leeway will be given to small businesses, employers should still be mindful of carrying out the entire process internally where the lack of impartiality could be criticised. For further advice in relation to following a proper and fair disciplinary process, please contact either Hannah or Hayley.