Can advice from a HR professional be disclosed at Tribunal?

Home ADVICE & GUIDANCE Can advice from a HR professional be disclosed at Tribunal?
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The case of Ramphal v Department for Transport UKEAT/0352/14 was an important decision which all HR professionals should be aware of, in particularly companies which operate with a business model of having internal HR advisors within their organisation. In this particular case, it was found that an investigating officer’s report was too heavily influenced by the company’s internal HR department, resulting in the Employment Appeal Tribunal making a decision that the employee’s dismissal was unfair as a result of undue influence.

The first point to note here is that any advice given by HR professionals (who are not solicitors or their employees, barristers and in-house lawyers), does not benefit from legal professional privilege (LPP). This is a privilege against disclosure, ensuring clients of a legal advisor know that certain documents and information provided cannot be disclosed at all, including details of any advice given relating to any HR matters. For the sake of clarity, I think it is important to clarify here that CIPD professionals, HR managers/advisors, employment law consultants/advisors and external HR advisory companies do not benefit from LPP.

With that in mind, should you ever be in the unfortunate position where as a company you are sued by an existing/former employee and are not protected by LPP, then you may be asked to disclose details of any advice received from a HR professional or advisor during the course of the Tribunal proceedings.

Following the case above, a key point to note is that HR advice should be limited essentially to matters of law, process and procedure, clarity and to ensure that all of the matters in question were addressed. The Tribunal found  that it was not wrong for the investigating/disciplinary officer to seek and receive guidance from HR, however if the advice went beyond this with a view to influencing a  decision or culpability, then this would be deemed to be inappropriate resulting in a potential finding  of unfairness.

This case is an important reminder for all HR/employment law professionals and advisors who do not benefit from LPP, not to overstep the mark when advising on any HR matters. It also highlights the importance of making a note of any advice given (for companies with in-house HR professionals) and received so that if an argument of improper influence was ever raised, then it is capable of being defended.

On a practical note, it is always worth bearing in mind as business owner, that the employer is deemed to be the decision maker. Therefore when obtaining advice on matters such as a disciplinary issue with an employee, it should always be provided in a way whereby you are given the available options  based on the particular scenario, the  associated risks are explained, therefore allowing you as a company to make an informed decision which is not influenced by a third party. With that in mind, for companies that take advice from HR professionals (whether this be internal or external), the expectation should never be for the advisor to provide a decision as this should always come from the chair of the particular meeting.

Furthermore, if you are an organisation that is not protected by the LPP principles, then you should always be aware of what you ask of your HR advisor and this could potentially have to be disclosed during tribunal proceedings. Decisions to dismiss an employee should never be pre-determined. Therefore an email to you HR advisor asking them “how can is dismiss an employee that has just returned from maternity leave because she is asking to make a flexible working request” is a big no no. Even if you follow a fair process, the fact the decision was determined from the outset would deem any fair process null and void. An employer must be aware of HR’s or an HR advisor’s remit and understand that the decision must come from a senior figure who chaired the disciplinary.

Nitu Patel

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