HR Advice Hub

Can an External HR Consultant Chair a Disciplinary Hearing?

When a business is dealing with a disciplinary matter, particularly a complex or sensitive one, bringing in an external HR consultant can seem like an obvious solution. But what should the consultant actually do?

External HR consultants can provide valuable support throughout a disciplinary process and can be particularly useful when a business needs somebody independent of the situation to carry out an investigation. Asking an external HR consultant to actually chair the disciplinary hearing and determine the outcome, however, is a different matter. So, can an external HR consultant chair a disciplinary hearing? Potentially - but whether they should is a more important question.

Who Would Normally Chair a Disciplinary Hearing?

A disciplinary hearing will normally be chaired by an appropriate manager within the organisation who has the authority to make the potential disciplinary decision. Their role is not simply to run the meeting.

They need to consider the evidence gathered during the investigation, listen to the employee's response, explore any relevant points raised during the hearing and ultimately decide whether disciplinary action is appropriate. That might result in no further action, a disciplinary sanction or, in sufficiently serious circumstances, dismissal. This is therefore an important management decision. HR (whether internal or external) can provide advice and support, but that does not necessarily mean HR should take ownership of the decision itself.

Can an External HR Consultant Chair the Hearing?

There is no general rule preventing an appropriately appointed external HR consultant from chairing a disciplinary hearing. There may also be circumstances where this is considered appropriate, particularly where a small business has very limited management resources or there is nobody internally who can reasonably undertake the role.

But businesses should not automatically assume that bringing in an external HR consultant means handing the entire disciplinary process over to them. There is an important difference between supporting a disciplinary process and making the employer's disciplinary decision.

Before asking an external consultant to chair a hearing, the employer should consider its own disciplinary procedure, who has authority to make the potential decision and exactly what role the consultant has been appointed to perform.

Should an External HR Consultant Make the Disciplinary Outcome?

This is where businesses need to be particularly clear. A disciplinary outcome is ultimately a decision about the employer's own employee. An external HR consultant can advise on the process, identify potential risks, help the chair understand the evidence and discuss the range of reasonable options available.

But the manager appointed to make the decision should genuinely make that decision themselves. It should not become: "HR decided we should dismiss them." Nor should a manager simply approve an outcome because an HR consultant has told them what the decision should be.

The disciplinary chair should consider the evidence, the employee's response, any mitigating circumstances and the advice they have received before reaching their own conclusion. Good HR advice helps somebody make an informed decision. It does not remove their responsibility for making it.

What Should an External HR Consultant Do During a Disciplinary Process?

There are several ways an external HR consultant can support a business without taking ownership of the disciplinary outcome. For example, they might:

• advise on the appropriate disciplinary process

• help the business establish who should perform each role

• review disciplinary correspondence

• advise the disciplinary chair before the hearing

• attend the hearing to provide HR support

• help identify questions or areas requiring further exploration

• advise on procedural fairness and consistency

• discuss potential outcomes and associated risks

• help ensure the eventual decision is clearly documented

This can give a manager significant support while still allowing them to own the management decision.

External HR Consultants Can Carry Out Workplace Investigations

Before a disciplinary hearing takes place, the employer will usually need to establish the facts and decide whether there is a disciplinary case to answer. This is where an external HR consultant can be especially useful.

An independent, external investigator can gather relevant evidence, interview the people involved, review documentation and produce an investigation report for the employer. They are not there to decide what disciplinary sanction an employee should receive.

Instead, their role is to establish the facts as objectively as possible so that the business can decide what, if anything, should happen next. This can be particularly useful where the allegations are complex or sensitive, senior employees are involved, or there is nobody internally who is sufficiently removed from the circumstances to investigate.

Why Separate the Investigation From the Disciplinary Decision?

Where practicable, the person investigating disciplinary allegations should be different from the person conducting the disciplinary hearing. There is a good reason for this. The investigator gathers and establishes the evidence. The disciplinary chair considers that evidence alongside the employee's response and decides the outcome.

If one person investigates the allegations, decides there is a case to answer, chairs the subsequent disciplinary hearing and then determines the sanction, the different stages of the process can start to blur together. Using an external HR consultant for the investigation can therefore be particularly helpful for smaller businesses.

The consultant can conduct the fact-finding process and provide the employer with an investigation report. An appropriate manager or business owner can then consider that evidence at a disciplinary hearing, with HR advice available if needed.

What If There Is Nobody Suitable Internally?

This is often the real difficulty for small businesses. A large organisation might have several managers available: one to investigate, another to chair the disciplinary hearing and somebody more senior still to hear an appeal. A business with ten employees may not have that luxury.

The owner may have witnessed the incident. The employee's manager may have raised the allegations. Another senior employee might already have been interviewed as a witness. In those circumstances, external HR support can help the business create greater separation within the process. That does not automatically mean the external consultant should take every stage.

It may be more appropriate, for example, for an external consultant to conduct the investigation while the business owner or another authorised manager retains responsibility for the disciplinary hearing and outcome. The right approach will depend on the circumstances and the resources genuinely available to the employer.

Think About the Appeal Before Allocating Roles

Another common mistake is only thinking about the next stage of the process. Before deciding who should investigate or chair a disciplinary hearing, consider what would happen if the employee appealed.

Where possible, an appeal should be handled by somebody who has not previously been involved and who has appropriate authority. For a small business, using every available senior person during the investigation and disciplinary hearing can leave nobody suitable to deal with an appeal. Planning the roles at the beginning can help avoid this problem.

External HR Support Should Help the Business Make the Decision – Not Make Every Decision for It

There are circumstances where an external HR consultant may chair a disciplinary hearing, particularly where there is genuinely nobody suitable within the organisation. But businesses should not use external HR simply as a way of handing over difficult management decisions.

Often, external HR can add more value by helping the employer structure a fair process, carrying out an independent workplace investigation and advising the manager who will ultimately make the disciplinary decision. The important thing is to decide who is responsible for each stage before the process begins.

That way, the investigation establishes the facts, the disciplinary chair can consider the case with an open mind and HR can provide the advice and support needed without confusing who actually owns the outcome.

Need HR Support?

If you're dealing with a disciplinary matter and need support with the process, BloomHR can help.

We can provide independent HR advice and carry out workplace investigations, giving your business the information it needs to decide what happens next. Contact us for more information.