Can HR Recommend a Disciplinary Outcome?

Once a disciplinary hearing has finished, it is quite common for the manager making the decision to turn to HR and ask what they think the outcome should be.

HR may have supported the manager throughout the process, know the disciplinary policy inside out and have much more experience of disciplinary cases than the person actually chairing the hearing. But can HR recommend a disciplinary outcome?

HR can provide advice and guidance to the disciplinary decision-maker, including around procedure, consistency and the options available. There are important boundaries around HR involvement in disciplinary decisions, particularly when advice starts to influence the manager's findings or choice of sanction.

What HR needs to avoid is taking over the manager's responsibility for deciding what happened, how serious it was and what the appropriate outcome should be.

Who Should Decide the Outcome of a Disciplinary Hearing?

The person appointed to make the disciplinary decision should make the decision. Depending on the organisation, this will often be the manager who chaired the disciplinary hearing.

They should consider the allegations, investigation, evidence, employee's response, any mitigation and anything else relevant before deciding whether disciplinary action is appropriate.

HR can support that process, but the outcome should genuinely belong to the decision-maker. This matters because the employee is entitled to a fair disciplinary process. If one person appears to chair the hearing but somebody behind the scenes actually determines the result, the integrity of that process can be called into question.

What Can HR Advise on After a Disciplinary Hearing?

HR can still provide support. For example, HR might advise the manager about what the disciplinary policy allows, whether the correct process has been followed and what further steps may be needed before reaching a decision.

HR can also help the manager understand the possible sanctions available and check how similar cases have previously been handled.

That consistency point can be particularly important. If an organisation has previously treated very similar conduct as misconduct resulting in a written warning, a manager should think carefully before suddenly treating another comparable case as gross misconduct resulting in dismissal. HR may be in a much better position than the individual manager to know about previous cases across the organisation.

Can HR Discuss Possible Disciplinary Sanctions?

Yes. There is a difference between explaining and discussing the range of reasonable options and simply telling the manager what outcome to give.

For example, HR might explain that the organisation's disciplinary policy allows for a first written warning, final written warning or dismissal depending on the circumstances.

HR could also highlight relevant considerations around consistency or explain the potential risks associated with a particular approach. The manager needs to reach their own conclusion based on the evidence they have heard.

Can HR Challenge a Manager's Proposed Outcome?

Yes, and sometimes HR should. Being independent does not mean HR has to sit silently while a manager makes a decision that appears inconsistent, unsupported by the evidence or outside the organisation's own disciplinary procedure.

Imagine a manager says they want to dismiss an employee for a relatively minor first offence. HR might reasonably ask how they reached that conclusion, point out that similar cases have previously resulted in warnings and explain the potential risks of treating this case differently.

Likewise, if a manager proposes no action despite evidence of serious misconduct, HR can ask whether they have properly considered the evidence and the organisation's previous approach. That is HR advice.

The important distinction is that after receiving that advice, the manager should still reconsider the case and reach their own decision.

What Did Ramphal v Department for Transport Say About HR Involvement?

The Employment Appeal Tribunal considered this issue in Ramphal v Department for Transport. The case involved an employee facing disciplinary action relating to expenses and the use of hire cars.

The manager responsible for the process received input from HR while preparing his findings. His earlier position included findings that were more favourable to the employee and contemplated misconduct and a final written warning.

Following HR involvement, significant changes were made. Findings favourable to the employee were removed, the assessment became more critical and the eventual outcome moved towards gross misconduct and summary dismissal.

The Employment Appeal Tribunal was concerned that HR's involvement appeared to have gone beyond appropriate advice on law, procedure and clarity and into questions about the employee's credibility and culpability.

The case is an important reminder that HR can advise the decision-maker, but should be very careful about influencing the factual findings they make.

Can HR Tell a Manager Whether Something Is Gross Misconduct?

This needs care. HR can explain what the organisation's disciplinary policy says about gross misconduct and whether the alleged behaviour falls within examples contained in the policy. HR can also explain the legal and practical distinction between misconduct and gross misconduct.

But deciding whether the employee's actual conduct in that particular case amounts to gross misconduct requires consideration of the evidence and circumstances. If HR simply tells the manager, "This is gross misconduct", there is a risk that HR has moved beyond advising on the framework and into determining culpability.

A better approach is to help the manager work through the question. What have they found happened? What evidence supports that finding? How serious was the conduct? What does the disciplinary policy say? Are there mitigating circumstances? How have comparable cases been handled? The manager can then reach their own conclusion.

Can HR Review a Draft Disciplinary Outcome?

Yes, but again there should be boundaries. It can be useful for HR to review a draft outcome before it is issued. HR might spot that the letter does not clearly explain the manager's reasoning, that an allegation has accidentally been left unanswered or that the appeal arrangements are missing.

HR can also challenge unclear reasoning. For example, if a manager concludes that an allegation is substantiated but their written explanation does not show how they reached that conclusion, HR can ask them to explain it properly.

What HR should not do is rewrite the manager's factual findings so that they reach a different conclusion. The outcome needs to remain the decision-maker's decision.

What If HR Disagrees With the Manager?

This can be uncomfortable. HR might believe that the manager's proposed sanction is too harsh, too lenient or inconsistent with previous cases. The answer is not for HR to quietly replace the manager's decision with its preferred one. Instead, HR should explain its concerns and why they matter.

That might include highlighting previous cases, relevant policy wording, procedural fairness, mitigating circumstances or potential legal risk. The manager can then reconsider their position.

If there is a serious concern about the proposed decision, the organisation may need to consider whether further internal advice or escalation is appropriate under its own procedures. But HR disagreement does not automatically transfer ownership of the decision to HR.

Why Is Consistency Important in Disciplinary Outcomes?

Consistency does not mean every employee accused of similar misconduct must receive exactly the same sanction. No two disciplinary cases are necessarily identical.

There may be differences in the employee's actions, previous disciplinary record, length of service, mitigation, consequences of the conduct or other relevant circumstances. But employers should be able to explain significant differences in treatment.

HR can play an important role here because an individual manager may only deal with one or two disciplinary cases, while HR may have visibility of similar cases across the organisation. That wider organisational knowledge can help the manager make a more informed decision without HR making the decision for them.

What Should HR Do if a Manager Asks, "What Outcome Should I Give?"

Rather than immediately giving them an answer, HR can help the manager work through their reasoning. Ask what they have found on each allegation and why. Discuss the evidence they relied on, the employee's explanation and any mitigating circumstances. Then look at the disciplinary policy, previous comparable cases and the range of sanctions available.

By the end of that conversation, the manager should be able to explain both what they have decided and how they reached that decision. That is much stronger than a manager simply saying, "HR told me to give them a final written warning."

Should HR Be the Disciplinary Decision-Maker?

Usually, HR's role is to advise and support the manager rather than act as the disciplinary decision-maker. There may be organisations or particular circumstances where an HR professional is formally appointed to conduct or chair a process. If that is genuinely their appointed role, that is a different situation.

The problem arises when the organisation says the manager is the decision-maker while HR is actually controlling the decision behind the scenes. Roles should be clear from the beginning.

What Should HR's Role Be in a Disciplinary Decision?

HR should be influential without becoming the hidden decision-maker. Good HR support can help a manager follow a fair process, test their reasoning, understand the policy, consider consistency and recognise risks they might otherwise miss.

It can also mean challenging a manager when their proposed outcome does not appear to fit the evidence. But there is an important difference between challenging someone's reasoning and replacing it with your own.

Ultimately, if a manager has been appointed to decide the disciplinary outcome, they need to own that decision and be able to explain why they reached it.

Need HR Support?

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

We provide practical HR advice to small businesses, including support with disciplinary investigations, hearings and outcomes, helping managers follow a fair process while keeping responsibility for management decisions where it belongs. Contact us for more information.