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How much HR input is too much?

HR are often involved in disciplinary procedures and it is quite normal for investigating and disciplinary officers to seek advice from HR on matters of procedure, interpretation of the relevant policies and questions of law. Unfortunately in the case of Ramphal v Department for Transport, the HR advice given to the investigation and disciplinary officer, who in this case were the same individual, went well beyond these facets into areas concerning culpability and the correct sanction.

Mr Ramphal was employed by the Department for Transport as an Aviation Security Compliance Inspector which involved a significant amount of travel, for which he was provided with a company credit card. He was selected for a routine audit of his transport and subsistence claims for the period October/November 2011. It was subsequently decided that whilst 50 items has been flagged for examination, his line manager agreed none of the items required further investigation given Mr Ramphal’s explanations. In mid-June 2012 Mr Ramphal’s line manager was instructed to carry out a further audit which threw up a number of issues. Of particular concern was excessive petrol consumption and the possible use of hire cars for personal reasons, which could constitute misuse under the company’s travel and subsistence policy.

Therefore in June 2012, Mr Goodchild, a manager, was appointed to conduct the investigation and act as dismissing officer if necessary. Mr Goodchild was inexperienced in disciplinary proceedings and during the course of preparing his final report and making his decision, he received advice from the HR Department. The advice extended to issues of the Claimant’s credibility and level of culpability, as well as recommendation of the appropriate sanction to be taken.  Following his investigation, Mr Goodchild sent the first draft of his report to HR. This draft found that Mr Ramphal’s explanations were plausible and that he should be given a final warning as he was guilty of misconduct rather than gross misconduct.  He found that Mr Ramphal’s misuse was not deliberate on the evidence and that explanations given by him for expenditure on petrol were “plausible”. However, following extensive further discussion with HR, the next 5 drafts of the report, one of which may have been substantively re-drafted by a member of HR, became more and more critical of Mr Ramphal with Mr Goodchild eventually recommending Mr Ramphal’s summary dismissal.

A key consideration for the EAT was that no new evidence had come to light after Mr Goodchild had drafted the initial report, to explain why he had changed the outcome so significantly.

The EAT considered the case of Chhabra v West London Mental Health NHS Trust [2014] ICR 194, (which the Tribunal Judge was not aware of), which states that “it was an implied term that the Report of an investigating officer for a disciplinary enquiry must be the product of the case investigator”. The appeal Judge also considered the well know test emanating from British Home Stores v Burchell [1978] IRLR 379 “that for the dismissal to be fair there has to be a fair investigation and dismissal procedure. If the integrity of the final decision to dismiss has been influenced by persons outside the procedure it, in my opinion would be unfair, all the more so if the Claimant has no knowledge of it”.

The EAT therefore referred the case back to the Employment Tribunal to decide whether or not the influence of the HR Department was improper, and if so, whether this had a material effect on Mr Goodchild’s decision. The Judge did add that in his opinion, this was an example of improper influence which had had a material effect.

What does this mean for you or your business?

Putting aside the fact that Mr Goodchild acted as both investigating officer and dismissing officer, which we would not recommend, the take home message from the EAT is that whilst an investigating or disciplinary officer is entitled to call for advice from HR, HR should be very careful to limit their advice to questions of law and procedure and ensure they avoid straying into making recommendations on the culpability of an employee and/or the suitable sanction(s) to be applied.

What do you need to be doing now?

If you are asked to be an investigation or disciplinary officer beware of seeking too much input from HR. By all means ask them for assistance with understanding the relevant company policies and law, but do be mindful of their level of input into your consideration of an employee’s culpability (which is a factual decision for you to decide), or indeed the appropriate sanction(s) for the employee.

As for HR, be aware of the limits to which you can give advice to your investigation or disciplinary officer and avoid the temptation to assist an investigation or disciplinary officer with drafting or amending their outcome letter.

These notes have been prepared for the purposes of this article only. They should not be substitute for taking legal advice. 

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