Employment Appeal Tribunal uphold decision where a disciplinary investigation that had been heavily influenced by HR resulted in unfair dismissal.
In the case of v Department for Transport (DfT), the Employment Appeal Tribunal held that a disciplinary investigation that had been heavily influenced by HR resulted in the employee's subsequent dismissal being unfair.
Mr Ramphal required to spend a significant amount of his working time on the road, for which he was entitled to receive subsistence and claim expenses.
In February 2012, Mr Ramphal was randomly selected for an audit of his expenses claims. Initially, around 50 items had been flagged up as requiring investigation, but Mr Ramphal was able to explain these items to his manager, and no further action was taken. However, Mr Ramphal was investigated again in June 2012 and further concerns were raised.
The DfT appointed Mr Goodchild to carry out an investigation. Mr Goodchild acted as both the investigatory and the disciplinary officer. Mr Goodchild had not previously acted in disciplinary proceedings so he met with HR officers, familiarised himself with the DfT's disciplinary procedure handbook, and, in particular, noted the distinctions between misconduct, gross misconduct and the appropriate penalties. A disciplinary hearing took place on 13 August 2012.
On 11 September 2012, Mr Goodchild sent the first draft of his report to Human Resources. Mr Goodchild's recommendation was for a finding of misconduct, with the sanction of a final warning. There followed six months of communications between HR and Mr Goodchild, leading to a complete change of view on Mr Goodchild's factual findings and recommendations as to sanction. Over the course of the various drafts and suggested amendments by HR, favourable comments were removed and replaced with critical comments, the overall view of culpability became one of gross negligence and the recommendation of sanction became summary dismissal for gross misconduct instead of a final written warning.
Mr Ramphal was dismissed, and brought a claim in the employment tribunal for unfair dismissal. An employment judge concluded that the decision was based upon as much investigation as was reasonable in the circumstances and that the decision to dismiss was within the band of reasonable responses open to a reasonable employer. The employment judge held that the decision was ultimately made by Mr Goodchild, and that he did not appear to be "much influenced" by the input of HR.
Mr Ramphal appealed.
The EAT allowed the appeal finding that Mr Ramphal's dismissal was unfair. The EAT held that the employment tribunal had failed to apply the decision of the Supreme Court in the case of Chhabra v West London Mental Health NHS Trust, in which it was held that advice from HR should be limited to matters of law and procedure, as opposed to questions of culpability, which are reserved for the investigating officer.
The EAT considered that the decision in Chhabra effectively established an implied term that the report of an Investigating Officer for a disciplinary enquiry must be the product of their own investigations. As such, the dramatic change in Mr Goodchild's approach after intervention by HR was "disturbing", and HR had clearly involved themselves in issues of culpability, which should have been reserved for Mr Goodchild. An Investigating Officer is entitled to call for advice from HR; but HR must limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability.
HR departments are routinely involved in disciplinary investigations, and this case provides employers with helpful guidelines as to exactly how much involvement and influence HR should have in such matters.
What is crucial is that HR limits advice to questions of law, procedure and process and avoids straying into areas of culpability. In particular, HR should not advise on what an appropriate sanction should be, outside of addressing issues of consistency. Significant influence by HR in the outcome of an investigation could potentially compromise the fairness of the investigation process and result in an unfair dismissal.
For more information on this or any other employment law issues please Employment specialist Amy Jones on 01382 229111 or by email ajones@thorntons-law.co.uk
