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Helpful guidance has been provided by the recent case of Ramphal v Department for Transport UKEAT/0352/14, 4 September 2015 in relation to HR involvement in disciplinary investigations.
HR Involvement In Disciplinary Investigations
Case summary
The Employment Appeal Tribunal (EAT) has allowed an appeal against the decision of an employment Judge that an employee had been fairly dismissed in circumstances where the investigating officer’s recommendations had been heavily influenced by input from HR. The investigating officer’s report originally recommended a finding of misconduct and a sanction of a written warning. However, after numerous comments and amendments by HR, the final report found the employee to have committed gross misconduct, and recommended immediate dismissal. It was emphasised that HR’s advice should be limited essentially to matters of law and procedure, as opposed to questions of culpability, which are reserved for the investigating officer.
The EAT set aside the finding on unfair dismissal, and remitted the case to be re-heard by the same employment Judge.
Background
To establish a fair dismissal on the grounds of conduct, it must be established that, at the time of dismissal:
- The employer believed the employee to be guilty of misconduct.
- The employer had reasonable grounds for believing that the employee was guilty of that conduct.
- The employer had carried out as much investigation as was reasonable in the circumstances when it formed that belief on those grounds.
Once the decision is taken that an investigation into an employee’s conduct is required, the employer needs to consider who should conduct the investigation. In many cases, the employee’s immediate line manager will be the appropriate person, but it may also be another officer of the employer. It is normal for the investigating officer to consult their HR department for guidance in this process.
In a previous case (Chhabra v West London Mental Health NHS Trust [2013] UKSC 80), the Supreme Court considered the extent to which a HR department can permissibly influence a disciplinary investigation. Lord Hodge believed that:
“There would generally be no impropriety in a case investigator seeking advice from an employer’s human resources department, for example on questions of procedure. I do not think that it is illegitimate for an employer, through its human resources department or a similar function, to assist a case investigator in the presentation of a report, for example to ensure that all necessary matters have been addressed and achieve clarity”. (Paragraph 37)
In Chhabra, however, alterations had been made to an investigatory report that went beyond clarification, with the result that the report was no longer truly the product of the investigating officer.
Facts
Mr Ramphal was employed by the Department for Transport (DFT), as an Aviation Security Compliance Inspector. He was required to spend a significant amount of time on the road, for which he was entitled to receive subsistence.
He was entitled to a hire car, and had a company credit card with which to pay for that car as well as other expenses. Using the credit card for personal expenditure was prohibited and there were limits on the subsistence to which he was entitled when close to home.
In February 2012, Mr Ramphal was randomly selected for an audit of his transport and subsistence claims. Initially, around 50 items had been flagged up as requiring investigation, but Mr Ramphal was able to explain these items to his manager, and no further action was taken.
Mr Ramphal was investigated again in June 2012, however, and further concerns were raised, including excessive petrol use, use of the hire car for personal reasons, and suspicious purchases, such as buying two cups of coffee.
The DFT appointed Mr Goodchild to carry out an investigation. Mr Goodchild acted as both the investigatory and the disciplinary officer. Mr Goodchild had not previously acted in disciplinary proceedings so he met with HR officers, familiarised himself with the DFT’s disciplinary procedure handbook, and, in particular, noted the distinctions between misconduct, gross misconduct and the appropriate penalties. A disciplinary hearing took place on 13 August 2012.
On 11 September 2012, Mr Goodchild sent the first draft of his report to HR. Although this report was partly critical, it contained a number of favourable findings in relation to Mr Ramphal. For example, Mr Goodchild found that Mr Ramphal’s misuse was not deliberate; he found that explanations given by Mr Ramphal for expenditure on petrol were “consistent” and “plausible” and that he had made a persuasive argument in relation to his fuel expenditure. Mr Goodchild’s recommendation was for a finding of misconduct, with the sanction of a final warning.
There followed approximately six months of communications between HR and Mr Goodchild, leading to a complete change of view on Mr Goodchild’s factual findings and recommendations as to sanction. Over the course of the various drafts and suggested amendments by HR, favourable comments were removed and replaced with critical comments, the overall view of culpability became one of gross negligence and the recommendation of sanction became summary dismissal for gross misconduct instead of a final written warning.
Mr Ramphal was dismissed, and brought a claim in the employment tribunal for unfair dismissal. An employment Judge concluded that the decision was based upon as much investigation as was reasonable in the circumstances and that the decision to dismiss was within the band of reasonable responses open to a reasonable employer. The employment Judge held that the decision was ultimately made by Mr Goodchild, and that he did not appear to be “much influenced” by the input of HR. The Supreme Court’s decision in Chhabra (see ‘Background’) was not referred to at all.
Mr Ramphal appealed.
Decision
The EAT allowed the appeal, setting aside the decision on unfair dismissal, and remitting the case back to the employment tribunal to consider again in the light of Chhabra.
The EAT considered that the decision in Chhabra effectively established an implied term that the report of an Investigating Officer for a disciplinary enquiry must be the product of their own investigations. As such, the dramatic change in Mr Goodchild’s approach after intervention by HR was “disturbing”, and HR had clearly involved themselves in issues of culpability, which should have been reserved for Mr Goodchild.
The changes were so striking that they gave rise to an inference of improper influence and the employment Judge should have given clear and cogent reasons for accepting that there was no such influence. An Investigating Officer is entitled to call for advice from HR; but HR must limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability.
Comment
This decision is useful in confirming that the principle in Chhabra has general application outside of the specific context of NHS contractual procedures in which it was decided.
HR departments are routinely involved in disciplinary investigations, and this case provides employers and employees with helpful guidelines as to exactly how much involvement and influence HR should have in such matters. What is crucial is that HR limits advice to questions of law, procedure and process and avoids straying into areas of culpability.
In particular, HR should not advise on what an appropriate sanction should be, outside of addressing issues of consistency. Significant influence by HR in the outcome of an investigation could potentially compromise the fairness of the investigation process and result in an unfair dismissal.
For more employment law advice or to comment on this article, contact us to speak to a member of our employment law team.