When looking into allegations of misconduct against an employee, one of the things an employer should do is carry out a reasonable investigation. Based on the outcome of the investigation, matters may progress to a disciplinary hearing. Those who are appointed to investigate the allegations or to conduct the disciplinary hearing will often turn to either internal or external HR for advice and guidance, as the consequences of getting it wrong could be a claim for unfair dismissal against the employer.
In the recent case of Ramphal v Department for Transport, the Employment Appeal Tribunal considered the extent to which the decision to dismiss Mr Ramphal, an employee of the Department for Transport, had been improperly influenced by HR.
Concerns had come to light over Mr Ramphal’s expenses claims and the Department for Transport appointed a manager to act as both the investigatory officer and the disciplinary officer. In the first draft of his report the manager found Mr Ramphal guilty of misconduct, but not of gross misconduct, and recommended that Mr Ramphal receive a final warning. There was subsequently a lot of communication between HR and the manager, and the report ended up being revised several times. The final report concluded that Mr Ramphal was guilty of gross misconduct and should be dismissed.
Mr Ramphal was dismissed and claimed unfair dismissal. The judge at the Employment Tribunal decided that the decision to dismiss Mr Ramphal was within the band of reasonable responses of a reasonable employer. Mr Ramphal appealed to the Employment Appeal Tribunal.
The EAT applied a decision of the Supreme Court in the case of West London Mental Health NHS Trust v Chhabra, which the Tribunal had failed to refer to, and which set out that there was no impropriety in the investigator seeking advice from HR on questions of procedure or for assistance with preparing a report or to ensure that clarity had been achieved, but in this case the report had been altered to the extent that the report was no longer the product of the investigator.
The EAT found that there was an inference of improper influence and decided that the case should be remitted to the Tribunal to be reconsidered.
This case highlights the limits on HR involvement and also the fact that correspondence with internal (or external) HR advisers is fully disclosable in litigation (as we dealt with in our previous article here). This was the reason why the extent of the emails and the revisions to the report could form part of the bundle of evidence seen by the Tribunal in this case.
Whilst those appointed to investigate allegations or to conduct disciplinary proceedings can of course seek advice from HR, any input should not go beyond the scope of questions of law, procedure and process and in particular should avoid influencing the decision maker’s assessment on culpability. This can be a difficult balance to strike and we expect that this is an area which may see further cases in future.
From an HR practitioner’s point of view, this case shows the need to be cautious. Often less experienced managers may ask HR for guidance on the findings or the outcome and indeed, HR managers may see that as part of their role in the process. However, this case illustrates the difficulties that can arise if HR are found to have been too involved in the decision.
Whether you are an HR practitioner or a manager, if you are dealing with a tricky disciplinary or grievance situation and are in doubt, then advice from solicitors (including us of course!) can be sought at any time and is covered by legal professional privilege, meaning that it would not be included in the evidence if you end up in court or Tribunal. We have years of experience in advising on all kinds of tricky issues and a quick call to us could help you avoid an expensive claim.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.