What are the limits on HR in disciplinary investigations?
Published on 25th Sep 2015
HR are routinely involved in disciplinary investigations but when can it be said that their involvement influences the outcome of disciplinary decisions taken by investigatory manager?
The recent EAT decision in Ramphal-v- Department For Transport serves as a useful reminder of the extent to which HR can appropriately participate in disciplinary investigations and decisions.
What happened in this case?
Mr Ramphal was employed by the Department for Transport (“DfT”) as an Aviation Security Compliance Officer. During his employment, an investigation was launched into possible misconduct involving expenses and the use of hire cars. A manager was appointed to conduct an investigation (and act as the dismissing officer if required). The manager’s initial report was that Mr Ramphal had not acted deliberately and the explanations in respect of his expenses were plausible. However, the manager’s initial view – that Mr Ramphal was guilty of misconduct rather than gross misconduct – altered as he liaised with HR and culminated with a radically altered final report which concluded that Mr Ramphal was indeed guilty of gross misconduct. Mr Ramphal was subsequently dismissed and he issued proceedings for unfair dismissal.
The Employment Tribunal found the dismissal fair but Mr Ramphal’s subsequent appeal to the EAT was allowed. It was established that no new evidence came to light after the initial report. The EAT noted the “dramatic change” in the approach of the manager after intervention by HR which it found “disturbing” and found that HR had become involved in issues of culpability giving rise to an inference of improper influence. The case was remitted back to the Tribunal to determine whether the influence of HR was improper and if so, had a material effect on the ultimate decision of the manager.
Guidelines Issued As To HR Involvement
In making their decision, the EAT gave some helpful guidelines on how much advice HR should provide to a manager – advising that HR should:
- be very careful to limit their advice to questions of law and procedure and process;
- avoid “straying into areas of culpability”;
- avoid advising on what is an appropriate sanction as to findings of fact in relation to culpability other than advising on issues of consistency; and
- not advise on whether a finding should be simple misconduct or gross misconduct.
The case is a helpful reminder as to the limit of the role of HR.
- There should be a clear demarcation between the role of HR and the role of the manager who is ultimately making the decision. In practice, this demarcation is often blurred depending on the personalities of the individuals involved, their levels of experience/seniority, the culture of the business and the circumstances of the case. It is not unusual for managers to seek quite extensive support from HR relating to findings of fact the manager should make, the correct sanction to adopt and even on occasion, requesting HR draft outcome letters. HR should be careful to avoid being put in a position where a natural desire to assist the manager in dealing with the process exceeds the ambit of their role to advise on questions of law and procedure and in the process potentially compromises the fairness of any investigation and risks a finding of unfair dismissal.
- Similar considerations will also apply in other situations where HR may play a key role in advising management on procedures to be adopted but which may ultimately result in dismissal such as poor performance and redundancy.
If you wish to discuss the implications of this case further, please do not hesitate to contact your usual Osborne Clarke contact.