In Ramphal v Department for Transport, the Employment Appeal Tribunal (EAT) found there was sufficient evidence to suggest that the employer’s HR advisors had improperly influenced the decision of the dismissing officer, thereby rendering the dismissal of the employee potentially unfair.
A dismissing officer is perfectly entitled to receive advice from HR (or from their legal adviser which of course would be privileged) before reaching a decision, but the advice should be limited to matters of law and procedure or to ensure consistency of sanctions imposed; however tempting, HR advisors must be careful not to make the decision for the dismissing officer or influence them improperly. There’s a line to be drawn in respect of HR’s remit, which may not always be easy to identify.
The dismissing officer’s role is to determine two issues – first, is the employee, on balance, guilty of the misconduct alleged; and secondly, if so, what is the appropriate sanction? In this case, HR had gone too far by expressing their own views on the outcome of both those stages.
In this case the employee concerned was accused of the potentially gross misconduct offence of using the company credit card and hire cars other than for business use. The investigation and subsequent dismissal was conducted by Mr Goodchild, whose first report concluded that the employee had a plausible explanation and that he should be given a final written warning. However, Mr Goodchild was inexperienced and sought the advice of HR at least 18 times over a period of several months who gave their view of the culpability of the employee with observations such as it was “surely unreasonable to purchase food close to his home”. Mr Goodchild’s final report was clearly influenced by HR’s comments and amended so that it concluded that the employee was guilty of gross misconduct and ought to be dismissed.
Despite there being a lack of alternative evidence offered by the employer at the hearing as to why Mr Goodchild changed his report significantly to conclude that the employee was guilty of gross misconduct, the Employment Tribunal decided that the intervention of HR was appropriate and the dismissal was fair.
The EAT disagreed and found that the intervention of HR went beyond permissible assistance by expressing views upon the Claimant’s credibility and the appropriate penalty. The EAT found the dramatic change in Mr Goodchild’s report “disturbing” and stated that an employee is entitled to expect that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability.
The decision of the EAT does not establish any new point of law. However, it is a helpful reminder of the role HR advisors (or any other advisors for that matter) have to play, especially in the context of a disciplinary hearing.
How else might HR advisors appropriately support the process and reduce the risk of an unfair dismissal claim? It’s important to understand that this case does not stop HR from supporting dismissing officers generally on points of law or procedure and HR can, for example, still advise about the “balance of probabilities test”. In most cases this should be enough to ensure that a sensible decision is reached.
HR should be mindful of their role and the limits on their involvement in the decision-making process. It is important to document any internal advice between HR and the dismissing officer, to record properly the type of advice which HR has given in the process, whilst remembering that legal advice, whether this is to HR or to the dismissing officer directly, should be privileged and will not be disclosable.
The case is also a reminder of the importance, where practicable, of having a different investigating and dismissing officer. Employers could also consider offering inexperienced or nervous disciplinary officers generic role play training or shadowing before they are tasked with their own real-life cases of serious misconduct.
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