Fair dismissals: should HR be involved?

With 1 January 2027 looming large, the need for fair dismissals is keener than ever. A recent case of Shing v University of the Arts London addresses some timely points on HR involvement and consistency in decision-making. 

Learning points

• HR involvement is often necessary in decisions regarding sanctions and dismissals but must not apply pressure to the decision maker. 
• Sanctions must be applied consistently across an organisation 

Case details

Mr Shing was a senior lecturer who embarked on a relationship with a student which was deemed inappropriate. The student complained to the university about Mr Shing’s behaviour and he was subsequently dismissed. The decision to dismiss was taken by Prof Crow.

Mr Shing brought claims for race discrimination and unfair dismissal. The former claim was based on the comparative argument that two colleagues had committed similar misconduct and yet had not been dismissed. The latter related to the alleged involvement of HR in the process which, according to Mr Shing, rendered the dismissal unfair in accordance with the case of Ramphal v Department of Transport [2015].

HR involvement

Mr Shing depended heavily on the Ramphal case and its comments on the role of HR in decision-making. Applying this case, he argued that HR should not be involved in decision-making in a dismissal case and that the integrity of a final decision should not be influenced by persons outside the procedure.   

The EAT rejected the application of the Ramphal case to Mr Shing’s dismissal.  The judge noted that “the contours of what is and is not permissible by HR in a dismissal case is [however] quite difficult”.  He further noted that there is no reason why HR should not appropriately advise on the application of concepts of misconduct and serious misconduct and even went as far as saying this is necessary to ensure that there is consistency of decision-making across any organisation. The boundary the HR team (or anyone else outside the process) must not cross is to apply undue pressure on any decision maker to either change their mind or make a specific decision.  The HR involvement in this decision to dismiss seemed to go no further than advising Prof Crow in the drafting of the letter to Mr Shing confirming the dismissal.  It did not try to alter the outcome nor Prof Crow’s decision and there was no finding of undue pressure. 

For that reason, the EAT rejected the appeal on the unfair dismissal point, rejecting Mr Shing’s application of Ramphal to his case.

Decision making

Mr Shing alleged that the decision to dismiss him was discrimination based on his race.  He based this entirely on the comparison between him and two colleagues: G, who was accused of misuse of power and inappropriate conduct and physical touching and H, who was accused of sending inappropriate and unwanted text messages. Only two allegations were upheld against G, and H was given a final written warning. The tribunal held there were major differences between the three men’s conduct, hence the different outcomes. As such, there was no evidence to suggest that identifying a hypothetical comparator – someone who had been accused of the same misconduct as Mr Shing but was not Chinese – would have been treated any differently. The EAT upheld this, noting that it was not necessary for the tribunal to consider a hypothetical comparator, which would have been an empty and arid exercise.

Practical points 

• Make sure your managers and your HR team are aware of their roles in any disciplinary processes; HR should advise and assist but must never make the decisions unless they have been appointed in charge of the disciplinary process.
• Ensure that managers understand their roles and hence are unlikely to rely too heavily on your HR team for substantive issues.
• Managers who will be carrying out investigations and chairing disciplinary meetings must have specific training – it is not sufficient for managers merely to be the face of the process and for HR to be “pulling the strings”.  A manager must be able to stand before a tribunal chair and justify a dismissal decision; explaining they dismissed an employee “because an HR partner told them to” will not help at all!
• Never make quick decisions on disciplinary sanctions, however minor.  Ensure you have applied any criteria outlined in a disciplinary policy and have checked for consistency.  Transparent and consistent decision-making will reduce the risk of allegations of unequal treatment and potential claims under the Equality Act 2010. 
• Notes, minutes, correspondence and clear letters outlining any sanctions and the reason for the sanctions are a crucial part of this process. They must be completed and stored appropriately. As we expect an increased number of tribunal claims given the reduction in qualification time to bring an unfair dismissal claim (6 months from 1 January 2027) and the extension of time to lodge a claim from 1 October 2026 (from three months to six months) and so an increased delay in claims being heard by the tribunal, this paperwork will form the foundations of any defence. Without it, it will be hard to gather information about a dismissal which could have happened six years previously.

If you would like specific advice or information about our bespoke investigation and disciplinary training courses for managers, please contact the team.