A recent Employment Tribunal Appeal (EAT) judgment has highlighted the limited role that HR advisers should play when offering guidance and advice on disciplinary procedures. It was found that, whilst HR can provide information and advice, this should be strictly limited to legal and procedural matters – and advisers must not attempt to influence decisions around an employee’s culpability.
Ramphal v Department for Transport involved an employee who was being investigated for misconduct due to alleged misuse of company hire cars and excessive mileage claims. In his initial report the investigating manager, Mr Goodchild, noted that Mr Ramphal had made some compelling arguments that his actions were a result of error and were not deliberate. Mr Goodchild therefore considered that Mr Ramphal should be seen as guilty of misconduct rather than gross misconduct, and given a final written warning.
Having sought further advice and guidance from the HR department – which extended into the areas of culpability and credibility – Mr Goodchild changed his viewpoint and became more critical of Mr Ramphal in subsequent reports. A final draft omitted any mention of Mr Ramphal making an error or not acting deliberately, instead stating that he should be considered guilty of gross misconduct and dismissed.
Mr Ramphal issued an unfair dismissal claim in the Employment Tribunal where the Employment Judge decided his dismissal was fair. Mr Ramphal duly appealed to the EAT, where HHJ Serato QC focused on whether or not the Employment Judge had given enough consideration to the possibility of undue influence on the part of the HR department.
HHJ Serato found that the Employment Judge had not paid sufficient attention to the startling U-turn in the various reports compiled by Mr Goodchild. It was clear that Mr Goodchild’s views on Mr Ramphal’s behaviour changed as a direct result of seeking guidance and advice from HR – inferring that HR had inappropriately influenced and encouraged Mr Goodchild to reach his final decision.
This was despite no new evidence being presented after the first report, which had found Mr Ramphal guilty of misconduct only. In HHJ Serato’s view this fact should have led the Employment Judge to fully investigate the reasons behind Mr Goodchild’s change of heart.
In reaching his judgement HHJ Serato referred to a previous decision in West London Mental Health NHS Trust v Chhabra. In this case the Supreme Court ruled that an HR adviser had overstepped the limits of his role by recommending changes to the investigating manager’s report which increased the level of criticism aimed at the defendant. Because of this the employer planned to charge the defendant with gross misconduct rather than misconduct, a move which the Court prevented after Ms Chhabra sought an injunction.
HHJ Serato noted that:
“Although a dismissing or investigating officer is entitled to seek guidance from Human Resources or others, such advice should be limited to matters of law and procedure and to ensuring that all necessary matters have been addressed and achieve clarity.”
“A Claimant facing disciplinary charges and a dismissal procedure is entitled to expect 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.”
In summing up the case HHJ Serato concluded that there was evidence to support “an inference of improper influence and the Employment Judge should have given clear and cogent reasons for accepting there was no such influence.”
The appeal was upheld and the case referred back to the original Employment Tribunal for a rehearing.
This case is a reminder that the roles and responsibilities of the decision maker and HR in any disciplinary process should be carefully defined and the importance of the decision maker reaching their own conclusions without any pressure or influence from elsewhere within the business.
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