Role for HR

Although an investigating officer is entitled to call for advice from Human Resources (HR), the Employment Appeal Tribunal (EAT) held in Ramphal v Department for Transport that the advice must be limited to questions of law, procedure and process. It was not the role of HR to advise whether the finding should be one of simple misconduct or gross misconduct.

Basic facts

After being selected at random for an audit of his transport and subsistence claims, Mr Ramphal was told that a number of items had been flagged up for further checking. As part of that process, the manager appointed to carry out the investigation as well as the subsequent disciplinary procedure met with officers from the HR department on numerous occasions for advice.

Although the manager decided in an initial draft of his report that Mr Ramphal was guilty of simple misconduct and should be given a final written warning, the final report said he was guilty of gross misconduct with a recommendation that he should be dismissed. This was then changed to summary dismissal. Although no new evidence had come to light since the initial report, the manager’s position became more critical of Mr Ramphal in subsequent drafts after communications with HR.

Mr Ramphal claimed unfair dismissal, arguing that the manager’s decision to dismiss him was improperly influenced by members of the HR team.

Tribunal decision

Observing that it was not wrong for an investigating/dismissing officer to seek advice and guidance from HR, the tribunal said that the question was how far, if at all, their advice had improperly influenced the manager’s decision to dismiss Mr Ramphal.

Although the judge was “particularly exercised” by the manager’s apparent change of mind during the course of the investigation, it concluded that the process was not rendered unfair by the involvement of the HR department. There was no doubt that the manager genuinely believed in Mr Ramphal’s guilt and there were reasonable grounds for sustaining that belief. The decision to dismiss was therefore within the band of reasonable responses open to a reasonable employer.

EAT decision

The EAT, however, disagreed. It pointed to the decision in West London Mental Health NHS Trust v Chhabra (weekly LELR 358), in which the Supreme Court held that there is an implied contractual term that the report of an investigating officer for a disciplinary enquiry must be the product of the case investigator. This, added the EAT, was even more important when the investigator was also the dismissing officer, as in this case.

The EAT found the manager’s change in approach after intervention from the HR department “disturbing”. Indeed, the changes were so striking that they gave rise to an inference of improper influence. The employment judge should therefore have given clear and cogent reasons for accepting that there was no such influence.

An employee facing possible dismissal is entitled to assume that the decision will be taken by the appropriate officer, without having been lobbied by other parties. In addition, he should be given notice of any changes in the case he has to meet so that he can deal with them, and also given notice of representations made by others to the dismissing officer that go beyond legal advice, and advice on matters of process and procedure.

Although an investigating officer is entitled to call for advice from HR, the EAT held that it must be limited to questions of law, procedure and process. It was not the role of HR to stray into “areas of culpability, let alone advising on what was the appropriate sanction as to appropriate findings of fact in relation to culpability insofar as the advice went beyond addressing issues of consistency”. Neither was it for HR to advise whether the finding should be one of simple misconduct or gross misconduct.

The EAT therefore allowed the appeal and remitted the matter back to the same employment judge to reconsider these points.