It is common for organisations with HR departments to heavily involve HR in disciplinary, grievance and redundancy processes. Indeed, one might say that is the whole point of having an HR department in the first place. To what extent though should the HR manager confine themselves to advice on procedure rather than more direct involvement in the decision making process?
The Employment Appeal Tribunal recently explored these issues in the case of Ramphal v Department For Transport. The EAT allowed an appeal against the decision that Mr Ramphal (C) had been fairly dismissed where the investigating officer’s recommendations were influenced by advice from HR.
As always, the particular facts of the case were important to the EAT’s findings.
C was employed by the Respondent as an Aviation Security Compliance Inspector. He spent a lot of time on the road and was provided with a hire car and company credit card to pay for the car and other expenses. Personal expenditure on the credit card was prohibited. In February 2012, C was randomly selected for an expenses audit and 50 items were flagged as a cause of concern. C was able to provide an explanation for the items to his manager and the employer decided not to take any further action.
In June 2012, there was another investigation and concerns were raised again about C’s excessive petrol use, use of the car for personal use and interesting purchases on the company credit card.
The employer appointed a Mr Goodchild to carry out an investigation into these concerns. He had not been appointed as an investigatory officer before so he met with HR to familiarise himself with the employer’s disciplinary procedure, key concepts such as gross misconduct and misconduct, as well as the relevant sanctions for each. Mr Goodchild then conducted the disciplinary hearing in August 2012.
In September 2012, Mr Goodchild sent the first draft of his report to HR. The report found that C’s misuse of the car and credit card were not deliberate and there were plausible reasons for expenditure on petrol. He recommended a finding for misconduct and a sanction of a final written warning.
Over the course of six months there were several communications between HR and Mr Goodchild. The report was apparently redrafted and HR suggested amendments to comments which found in favour of C, and the overall opinion of the report changed from a finding of misconduct to one of gross negligence and the recommended sanction being summary dismissal.
C bought proceedings against his employer for unfair dismissal. The tribunal found that the decision to dismiss had been within the band of reasonable responses and was fair.
The EAT set aside the Tribunal’s decision and remitted the case back to the Tribunal to be considered again in light of a case called Chhabra v West London Mental Health NHS Trust. This case established that it was an implied term of the employment contract that an investigating officer’s report for a disciplinary enquiry should reflect the investigations made by that officer and no one else. The changes to Mr Goodchild’s report after HR’s intervention showed that HR had involved themselves in issues of culpability.
This decision is a useful reminder that investigating officers are allowed to seek advice from HR, but this should be limited to questions of law and procedure. This distinction is important in preventing HR or other parties becoming involved in issues of culpability which could compromise the fairness of the entire investigation procedure and open employers up to claims of unfair dismissal. However, there are grey areas here in my opinion. Surely a good HR Business Partner should be permitted to challenge preliminary findings of an inexperienced manager to ensure, at the very least, that all relevant factors (and no irrelevant factors) have been taken into account and that the findings will withstand proper scrutiny. This is materially different to an HR professional actively trying to persuade a manager to change their mind, but arguably goes beyond mere advice on law and procedure.
The case also serves as a useful reminder that communications between managers and HR over such issues may well need to be disclosed in Employment Tribunal proceedings, particularly if a challenge is being made to the extent of the involvement of HR.