EAT clarifies the limits of HR's involvement in dismissal decisions

Background

In Shing v University of the Arts London, the claimant was a senior lecturer. He had a relationship with a mature student that the respondent considered inappropriate, although he was never her allocated tutor. The student complained, and the claimant was summarily dismissed. During the disciplinary process, he accepted that he had made "unintentional errors" and said he was now aware of the respondent's professional boundaries policy.

The claimant brought a claim of unfair dismissal. The claimant also brought a claim of direct race discrimination. His case relied only on two colleagues in similar roles, who he said had been treated more leniently for similar misconduct.

The Employment Tribunal found that the two colleagues' circumstances were materially different. One colleague's proven misconduct was less serious. The other had shown remorse, apologised and had long service with no previous disciplinary record. The decision maker had died before the hearing, so the tribunal reconstructed his reasoning from documents written at the time. Both claims failed.

EAT decision

The Employment Appeal Tribunal (EAT) dismissed the appeal.

On unfair dismissal, the claimant relied on an earlier EAT decision (Ramphal v Department of Transport), which has often been read as limiting HR's role in dismissal decisions to questions of law and procedure. The EAT held that the binding principle of that decision is narrower. If HR, or anyone outside the proper process, puts undue pressure on the decision maker, that can be weighed as a factor in deciding whether the dismissal was fair. How much weight it carries depends on the facts of each case.

The EAT added that HR may properly advise on the difference between misconduct and gross misconduct. This helps keep decisions consistent across an organisation. In this case, HR had only drafted the dismissal letter after the decision maker had already decided to dismiss, and HR applied no improper pressure.

On race discrimination, the EAT upheld the tribunal’s finding that neither colleague was an appropriate comparator. The EAT also rejected the argument that the tribunal had necessarily erred by failing expressly to construct a hypothetical comparator. A hypothetical comparator considers how a person of a different racial group would have been treated in materially equivalent circumstances. Given the tribunal’s findings and the absence of evidence that race influenced the decision, constructing one would have served no useful purpose.

Learning points for employers

Employers may involve HR in dismissal decisions, including advice on whether conduct amounts to misconduct or gross misconduct and on consistency with earlier cases. However, the appointed decision maker must retain responsibility for the decision, exercise their own independent judgement and record their reasons.

HR should not change investigation reports or push for a particular outcome. Undue pressure can still make a dismissal unfair. Employers should keep clear records made at the time, showing who made the decision and why. In this case, those records allowed the tribunal to reconstruct the reasoning of a decision maker who had died.

When deciding on a sanction, employers should record the factors that set one case apart from another, such as seriousness, remorse, length of service and disciplinary history. These records can answer claims of inconsistent treatment.

For more information or advice, please get in touch with Sofia Efstathiou in our Employment team.