Limitations of HR’s role in a disciplinary process

Facts

Mr Ramphal, an Aviation Security Compliance Officer for the Department of Transport (the “DFT”) was accused of over-claiming in relation to his expenses. Mr Goodchild, a manager at DFT, was appointed to carry out an investigation. Mr Goodchild had not previously conducted a disciplinary investigation and therefore sought advice from the DFT HR department throughout the investigation.

Mr Goodchild’s first draft report was partly critical but contained a number of favourable findings in relation to Mr Ramphal.  He made a finding of misconduct and a recommendation for a final written warning.   Six months later, following extensive correspondence with HR, the final version of the report was very different: favourable comments were replaced with critical comments, the overall view of culpability became one of gross negligence and the sanction recommended was summary dismissal for gross misconduct.

Mr Ramphal was dismissed and brought a claim for unfair dismissal.  The Employment Tribunal concluded that Mr Goodchild’s decision was his own and that Mr Ramphal had been fairly dismissed.  Mr Ramphal appealed claiming that there had been insufficient exploration of what HR’s input had been in the report.

The EAT Decision

From the evidence provided the EAT was unclear about what HR’s input had been but found that there was enough evidence to support an inference of improper influence.  The EAT said that the dramatic change in Mr Goodchild’s approach after representations made by HR was ‘disturbing’.   The case was remitted to the Tribunal to decide whether the influence of HR was improper and had a material effect on the ultimate decision.

Following Chhabra v West London Mental Health NHS Trust the EAT held that a report of an investigating officer must be the product of their own investigations.  An investigating officer is entitled to seek advice and guidance from HR however this advice must be limited to matters of law and procedure. Issues of culpability and the question of appropriate sanction must be exclusively reserved for the investigating officer and it is not for HR to advise on whether the finding should be one of simple or gross misconduct.

Guidance for HR

It is important that advice is provided to investigating officers who are unfamiliar with the current law and procedure.  However, HR should consider the following when providing advice:

• HR should be aware of the limits of their role and should not provide advice that could influence the outcome.  Advice must be limited to that regarding procedure and the law.  It is preferable for HR to provide such advice at the start of the process.
• HR should not advise on culpability or sanctions.  However, the consistency of decisions is important to the fairness of a dismissal and therefore HR can explain about the sanctions usually applicable to different levels of culpability.
• The final report must be the investigator’s report and HR needs to be clear with any investigating officer that their findings need to be their own.
• It is not clear whether HR can bring to the investigating officer’s attention issues in a report which they believe have been overlooked or underemphasised without it being considered ‘lobbying’.  If this occurs, the best practice would be for the investigating officer to raise any lines of enquiry with the employee so that both perspectives are heard before a decision is made.
• Correspondence between an investigating officer and HR does not attract legal privilege and in Ramphal v DFT the Tribunal resisted material redactions.   However, this should not put HR off giving written advice, provided it is not about the specific facts, merits or ideal outcomes.
• Employers may decide to provide consistent and comprehensive training to investigating officers to ensure inexperienced officers are aware of the remit of HR’s role, and that questions of fact are for their consideration alone. In addition, employers may need to provide up-to-date training to their HR departments on the limitations of HR’s role in disciplinary proceedings.

Merrill April