EAT Gives Guidance on HR’s Role in Disciplinary Investigations

An employment judge had been wrong to find that a dismissal for gross misconduct was fair in circumstances where the findings of the disciplinary investigation had been heavily influenced by HR. 

Speedread

An employment judge had been wrong to find that a dismissal for gross misconduct was fair in circumstances where the findings of the disciplinary investigation had been heavily influenced by HR. There is an implied term that the report of an investigating officer must be the product of their own investigations. HR had clearly involved themselves in issues of culpability which should have been reserved for the investigating officer. The role of HR is limited to providing advice on issues of procedure and law. 

Facts

In Ramphal v Department for Transport, the employer launched an investigation into possible misconduct by Mr Ramphal in relation to his expenses and use of hire cars. Mr Goodchild was appointed to act as investigatory and disciplinary officer. 

Mr Goodchild was inexperienced in disciplinary proceedings. During the course of preparing his report he sought advice from the HR department on a number of matters. The advice he received extended beyond matters of law and procedure to the issue of Mr Ramphal’s credibility and degree of culpability. This resulted in a significant change of stance between the first draft of the report and the final version. The first draft was partly critical of Mr Ramphal but contained a number of favourable findings, including that the misconduct was not deliberate and that his explanations were consistent and plausible. Mr Goodchild recommended a finding of misconduct and the sanction of a final warning. 

There followed approximately six months of communications between Mr Goodchild and HR. This led to a complete change in Mr Goodchild’s factual findings and the sanction he recommended. Favourable comments were removed and replaced with critical comments and the recommendation was changed to a finding of gross misconduct and summary dismissal. 

Mr Ramphal claimed unfair dismissal. He argued that Mr Goodchild’s decision was improperly influenced by HR. 

Decision

The employment tribunal found the dismissal fair. The decision to dismiss was based on a reasonable investigation and was within the band of reasonable response open to a reasonable employer. The decision was ultimately made by Mr Goodchild. 

Mr Ramphal appealed to the Employment Appeal Tribunal (EAT). The EAT overturned the tribunal decision and remitted the case back to the employment tribunal. 

A previous decision of the Supreme Court (Chhabra v West London Mental Health NHS Trust) indicates that there is an implied term that the report of an investigating officer must be the product of their own investigations. The dramatic change in Mr Goodchild’s approach after intervention by HR was disturbing and there did not appear to be any fresh evidence to explain this change of heart. 

HR had clearly involved themselves in issues of culpability which should have been reserved for Mr Goodchild. Mr Goodchild’s discussions with HR had clearly gone beyond discussing issues of procedure and law. The changes in the report were so striking that they gave rise to an inference of improper influence. The employment judge should have given clear and cogent reasons for accepting that there was no such influence.

Implications

This case contains important guidance on the role of HR in disciplinary proceedings. HR must be careful to limit their advice to questions of law and procedure. They must avoid straying into issues of culpability. They must not advise on whether a finding should be one of simple misconduct or gross misconduct or on the appropriate sanction. Interference from HR on these issues could make any subsequent dismissal unfair.