A step too far? How much should HR managers influence disciplinary proceedings?
The level of HR involvement in disciplinary decisions is open to challenge now more than ever before due to a decision of the EAT handed down this week.
The case of Ramphal v Department for Transport serves as a timely reminder that advice from HR departments should be limited to matters relating to law and procedure and should not stray into the realms of culpability and sanction.
Mr Ramphal worked for the Department for Transport as an Aviation Security Compliance Inspector. He was investigated in relation to allegations of improper expense claims and subsequently invited to attend a disciplinary hearing. Mr Goodchild was appointed as the investigating officer.
Mr Goodchild’s initial investigation report was partly critical of Mr Ramphal but made a number of findings in his favour and recommended that Mr Ramphal be given a final written warning for misconduct. He had limited experience in conducting disciplinary investigations and therefore discussed the contents of the report at length with HR. As a result Mr Goodchild amended his report and concluded that Mr Ramphal had committed gross misconduct. The sanction of a final written warning was replaced with one of summary dismissal. Mr Ramphal was dismissed and subsequently brought a claim in the Employment Tribunal for unfair dismissal, which was unsuccessful. He appealed.
The EAT referred to the case of Chhabra v West London Mental Health NHS Trust which established that it is an implied term of an individual’s contract of employment that the report of an investigating officer must be the product of their own investigations.
The shift in Mr Goodchild’s report following him taking advice from HR was so dramatic that it was clear that HR had gone beyond advising just on the law and procedure. They had involved themselves in issues of culpability and sanction; areas that should have been the decision of Mr Goodchild alone. The EAT commented that it is not the role of HR managers to advise on whether a finding should be one of misconduct or gross misconduct.
This case reminds us that whilst routinely involved in disciplinary procedures, HR departments should take care to restrict their advice to matters of law and process rather than culpability. The case also highlights that disciplining officers should also undertake appropriate training to ensure that they are confident in any recommendations that they make as part of the disciplinary process. Significant involvement by HR in such processes could potentially render an otherwise fair dismissal, unfair.
If you have any questions relating to this briefing, please contact Alex Gess.
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