10 September 2015 #Employment
Human Resources’ departments are often asked to provide advice and guidance on disciplinary matters, however, a recent case from the Employment Appeal Tribunal (EAT) has warned of the risk of overstepping the mark and applying ‘improper’ influence.
Mr Ramphal, an employee of the Department of Transport, was accused of misconduct involving various expenses.
Mr Goodchild (who was both the investigatory and disciplinary officer) was relatively inexperienced in dealing with disciplinaries and sought initial advice from the HR team. He prepared a draft report suggesting that there was a finding of misconduct and recommending a final warning be given. Following lengthy discussions with HR this report was amended to become much more critical of Mr Ramphal. In the end, it concluded that there had been gross misconduct and made a recommendation for summary dismissal.
Mr Ramphal’s claim for unfair dismissal was rejected at tribunal, however, the EAT overturned the decision and remitted the case back to the employment judge to consider further.
The EAT felt that (following a recent Supreme Court case) there was now an implied term that a report of an investigating officer must remain their own work. The EAT said that the changes here were ‘so striking that they gave rise to an inference of improper influence’ and that the employment judge should have given clear reasons for accepting that there was no such influence which it had failed to do. The EAT felt that there had been no fresh evidence justifying the change of heart and said that an employee facing disciplinary charges is entitled to assume the decision will be taken by an appropriate officer without having been lobbied by other parties. The case will now go back to the employment judge to consider HR’s influence further.
HR often play a very important and valuable role in these processes. This case reinforces this practice but makes clear that there is a line that should not be crossed. To stay on the right side of the line, HR professionals should ensure that they limit their advice to questions of law and procedure. They may comment on appropriate sanctions in the context of achieving consistency, however, going further that this and advising on issues of credibility and culpability will likely to bring into question the fairness of any dismissal influenced by that advice.
Case Reference: Ramphal v Department for Transport UKEAT/0352/14