How far is too far? The risks of giving HR advice on disciplinary procedures
The Employment Appeal Tribunal (EAT) has given a reminder to HR advisors on how far they can go in assisting a disciplinary investigation in the case of Ramphal v Department for Transport (2015).
The Claimant worked for the DfT as a compliance inspector. His duties included a substantial amount of travel as his territory stretched from Cornwall to Scotland. Following a random audit, he was investigated in relation to possible misconduct concerning his expense claims. At first, his line manager felt that none of the queries that were flagged up required further investigation but another manager (Mr Goodchild) was instructed to carry out a further investigation and disciplinary process. Mr Goodchild had no experience of disciplinary proceedings so he relied upon the HR department for guidance. The Department’s Staff Handbook dealt with the conduct of investigations and disciplinary proceedings. It included the following pledge, ‘We won’t make decisions for you, that’s your job, but we will be there for you.’ Despite this, the HR department became heavily involved in the content of the investigatory report. The first drafts of the investigatory report were balanced, noting the Claimant’s ‘plausible’ explanations, and recommending a finding of misconduct and a sanction of a final written warning. Over several drafts and after the contact with HR, favourable comments were removed and the recommendation became summary dismissal for gross misconduct.
The tribunal noted the ‘lax procedures’ and lack of guidance on expenses claims. Nevertheless, it went on to find that the decision to dismiss the Claimant was fair.
The EAT found that the HR department had gone significantly beyond providing advice limited to process and procedures. The EAT concluded that a necessary ingredient of the allegations of theft and fraud levelled against the Claimant was a dishonest intention, but this had not featured in the advice given by HR. Their advice led to a reshaping of Mr Goodchild’s views, changing his findings on culpability and credibility, in a way that it found ‘disturbing’. There was no fresh evidence or new material to explain his change of position. This gave rise to an inference of improper influence. The EAT went on to warn: “In my opinion, an Investigating Officer is entitled to call for advice from Human Resources; but Human Resources must be very careful to limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability, let alone advising on what was the appropriate sanction as to appropriate findings of fact in relation to culpability insofar as the advice went beyond addressing issues of consistency. It was not for Human Resources to advise whether the finding should be one of simple misconduct or gross misconduct.” “I consider that an employee facing disciplinary charges and a dismissal procedure is entitled to assume that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability, and that he should be given notice of any changes in the case he has to meet so that he can deal with them, and also given notice of representations made by others to the Dismissing Officer that go beyond legal advice, and advice on matter of process and procedure.” The case was remitted back to the same tribunal to reconsider these issues.
The EAT has already considered the extent to which HR can guide an investigator or dismissing manager in Chhabra v West London Mental Health NHS Trust (2014) (although the tribunal in Ramphal did not have the opportunity of seeing the earlier judgment). In Chhabra, the EAT considered the effect of MHPS on a disciplinary investigation. The trust had assured the claimant in that case that an Associate HR Director would have no involvement in the process but they were sent a draft investigation report and suggested amendments, some (but not all) of which were accepted. The EAT held that this was a breach of contract as it went beyond the trust’s policies which implemented MHPS.
Ramphal makes it clear that HR managers need to be extremely cautious in the advice they give. It is obviously tempting, particularly when dealing with an inexperienced manager, to guide the findings on certain allegations or even the outcome of the investigation. Many HR managers will see that as part of their role. However, the decision remains that of the investigator or dismissing manager. They will be the one to give evidence, under oath, as to what they considered and why they reached the decision they did. HR advisors must be aware that if they stray too far into the decision-making process, they may render any subsequent dismissal unfair.