New case explains HR’s role in disciplinary matters

By Joan Pettingill, 11 September 2015

Summary
To what extent should the H.R team influence an investigating officer’s report?  This was the key consideration in the Employment Appeal Tribunal (EAT) case of Ramphal v Department of Transport reported earlier this week. The EAT found in this case that H.R had overstepped the mark of what they should or shouldn’t advise and by doing so caused the dismissal to be unfair.

Facts
The Employment Appeal Tribunal has found that an employee was unfairly dismissed after an investigating officer’s report was found to have been too heavily influenced by H.R’s input. Mr Ramphal was employed as an Aviation Security Inspector by the Department of Transport (DoT). DoT launched an investigation into his suspected misconduct which concerned Mr Ramphal’s expenses and use of hire cars. His manager, Mr Goodchild was asked to lead the investigation and also to act as disciplinary officer. He was inexperienced at dealing with disciplinary investigations and during the course of preparing his report received advice and guidance from the H.R department.

But H.R failed to limit their advice to law, procedure and the possible levels of consistent sanction which might be appropriate for this type of possible offence. The advice from H.R extended to issues of Mr Ramphal’s credibility and level of culpability. The manager prepared a first draft investigation report and sent it to H.R. This first report contained a number of favourable findings about

Mr Ramphal including that any misuse was not deliberate and that there was no compelling evidence suggesting that his actions were deliberate. The manager also found that Mr Ramphal’s explanations about how he used petrol were plausible and that he had argued persuasively about his fuel expenditure and offered sensible reasons for why his fuel use was above that which his line manager normally expected. The manager was minded to find Mr Ramphal guilty of misconduct rather than gross misconduct and he wrote this in his first draft report to H.R.

However after the draft report had shuttled between the manager and H.R the favourable findings were removed and the report became more critical. The final version found that “on the balance of probability the claimant is guilty of gross misconduct in respect of the use of the Corporate card and the misuse of hire cars”. The report went on further to make a recommendation of dismissal. Eventually after more amendments the recommendation changed to one of summary dismissal.

Judgement
The EAT judge found that H.R appeared to have sought to persuade the manager to take a more critical view of the claimant’s conduct than he had done originally. H.R had rejected the claimant’s explanations for certain expenditure which he had maintained was as a result of mistakes by him, and which the investigating manager appeared to have agreed with. The EAT found that the manager had been inappropriately lobbied by H.R.to change his views. The EAT said that the employment tribunal at first instance should not have found that the dismissal was fair but should have given more consideration to why the investigating manager had undergone such a change of heart.

Learning points
Although an investigating or dismissing officer is allowed to seek guidance from H.R, that guidance should be limited to law, procedure and ensuring that all necessary matters have been investigated and addressed in order to ensure clarity. Applying an earlier case called Chhabra v West London Mental Health NHS Trust, the EAT made clear that a person facing disciplinary charges and a possible dismissal procedure is entitled to expect that the decision will be taken by the appropriate officer. The employee is also entitled to expect that the disciplinary officer has not been lobbied by H.R and that the disciplinary officer is in fact the person who is taking responsibility for the decision. Further, if the employee is facing a potentially harsher set of allegations, then he should be informed of them and why they are being put so that he has the opportunity to meet the charges against him properly. Mr Ramphal didn’t have the opportunity to do this in between the various draft reports.

What should you do next?

• Don’t appoint the same manager as investigating and disciplining officer (particularly in a large organisation like DoT).
• Don’t be complacent, pay careful regard to the ACAS Code on disciplinary and grievance procedures.
• Draft reports which are sent to HR for checking are not legally privileged and thus are required to be disclosed in the event proceedings are brought or a data protection request made.
• If you need to keep draft reports confidential speak to us first about how to do this.
• Train managers so they are better placed to make proper findings of fact.
• HR can input to explain law, procedure and levels of sanction applied for similar offences.
• HR should not lobby to encourage managers to change their minds.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

Joan Pettingill is a Director of Lupton Fawcett Denison Till (Lupton Fawcett LLP).