Our October newsletter dealt with a recent case that addressed the involvement of HR in disciplinary hearings and when they potentially “cross the line” between being advisers and becoming decision makers (Ramphal v Department for Transport).
We are finding a number of clients are currently using HR consultants to address their HR needs, particularly in circumstances where the size of their business doesn’t merit a dedicated HR function, or costs simply won’t allow it.
In such cases, businesses would be well advised to be mindful of cases such as this (as there is no reason why they wouldn’t equally apply to an external consultant as an internal HR function).
In addition, any documents prepared by HR consultants will almost certainly be fully disclosable; for example, if the employee were to make a subject access request, or in the course of employment tribunal proceedings. This sometimes comes as a shock for employers who, on the whole, seem to operate under the assumption that because they have bought someone in externally to help them with an HR issue, any correspondence between them and the consultant or indeed internal documents prepared by the consultants should be confidential or protected from disclosure in some way. This is not the case. Of course, one way of ensuring that such documentation is protected is to get your legal advisers involved at an early stage; as this will enable to you argue that it falls within the ambit of legal professional privilege.