How much HR involvement is appropriate in a disciplinary process?
In a recent case the Tribunal decided that the dismissal of an employee was unfair because the disciplinary investigation had been heavily influenced…
In the recent case of Ramphal v Department for Transport, the Employment Appeal Tribunal decided that the dismissal of an employee was unfair because the disciplinary investigation had been heavily influenced by HR. So where should HR’s involvement stop and what does this case tell us HR should not do?
For a dismissal to be fair on the grounds of conduct, the employer must have a reasonable and honest belief that the employee is guilty of misconduct and that belief must be established as a result of a reasonable investigation. This often involves the appointment of an investigating officer who will prepare a report setting out the results of the investigation and, sometimes and if appropriate, a recommendation as to the disciplinary action which could be taken. Investigating officers often consult HR for assistance with the investigatory process.
Case law has established that HR’s role in disciplinary investigations should be limited to advising the investigating officer on matters of procedure and law. The case of Ramphal v Department for Transport confirmed this principle and made clear that the investigatory report must be the work of the investigating officer and the conclusions reached must be their own.
Mr Ramphal had worked for the Department for Transport and his role involved a lot of travelling. He was given a hire car and was paid for work-related travel expenses and subsistence. A random audit showed that there were some suspicious expenses on his account and it was decided to conduct an investigation.
An investigating officer was appointed who compiled a report regarding the allegations. The report expressed concerns about some of the expenses but it also contained a number of positive comments about Mr Ramphal and noted that he had provided adequate explanations in relation to a number of the allegations. The report recommended that that the employee should be disciplined for misconduct and given a written warning.
The report was then sent to HR who heavily amended the document. HR removed numerous positive comments about Mr Ramphal and replaced them with negative comments. They also amended the report’s recommendations to suggest that the employee should be dismissed without notice for gross misconduct.
Mr Ramphal was dismissed, and brought a claim in the employment tribunal for unfair dismissal. The Employment Tribunal found that the dismissal was fair but this decision was overturned on appeal. It was found by the EAT that HR had been too heavily involved in the investigatory process and that, in effect, the conclusions of the investigatory report were those of HR rather than the investigating officer himself.
Comment - how much involvement is appropriate?
It can be difficult to know how much HR involvement is appropriate, but this case can be used as a useful guide for HR professionals to ensure that any process is conducted fairly. In summary, as part of a disciplinary investigation HR professionals can:
- Advise on the legal framework in relation to the disciplinary process;
- Assist an investigator in the presentation of a report; or
- Assist an investigator in making a report clear and ensuring all the relevant issues are addressed.
However to avoid any dismissal being deemed to be procedurally unfair you should not:
- Override the view of the investigating officer;
- Make decisions about an employee’s culpability; or
- Advise on/amend what an appropriate sanction should be (except to raise issues of consistency).
It is important to note that this case is about the involvement of HR when another employee is appointed to be the investigator. If your organisation’s approach is for members of your HR team to be appointed as the investigator or decision-maker in accordance with the procedure, this Judgment does not change what you can or should do. However where someone else is the investigator or decision-maker it is a salutary reminder that you/HR must not tinker too much with what that person has decided (even if you think you could have done a better job yourself).
Do remember that you can use Weightmans to provide privileged legal advice to your investigators or decision-makers if you think they might need some advice, and it most cases such advice and suggestions cannot be considered by a Tribunal, in circumstances when your own advice and amendments might be.