Will the influence of HR in an investigation and disciplinary render a dismissal unfair?
In a recent case decided by the Employment Appeal Tribunal the question of fairness of an employee’s dismissal was considered in respect of the influence that HR had on the investigation and subsequent disciplinary decision.
In order for a dismissal to be fair employers must have one of five potentially fair reasons to dismiss:
Capability or qualifications
Some other substantial reason
As outlined in the leading case of British Home Stores v Burchill  in order to determine if the decision was a fair one the Employment Tribunal must be satisfied that:
- The employer believed the employee to be guilty of misconduct.
- The employer had reasonable grounds for believing that the employee was guilty of that misconduct.
- The employer carried out as much investigation as was reasonable in the circumstances when it formed that belief on those grounds.
In this case Mr Ramphal was employed by the Department for Transport as an Aviation Security Compliance Inspector. He had been employed within the civil service for approximately 17 years when he was dismissed for gross misconduct.
Following a random audit of his transport and subsistence claims allegations were raised about Mr Ramphal’s conduct regarding his expenses and use of hire cars. Mr Ramphal’s territory extended from Cornwall to Scotland and so he was required to spend a significant amount of time on the road, for which he was entitled to receive subsistence. In order to facilitate his travelling he was entitled to a hire car. Mr Ramphal would use a credit card that had been issued to him to pay the expenses.
In accordance with the Employer’s procedures an investigation was launched into the allegations and the investigation was led by Mr Goodchild who was also the decision maker and dismissing officer.
As Mr Goodchild was fairly inexperienced in dealing with disciplinary issues he sought advice from HR about the process.
In the course of preparing his investigation report Mr Goodchild appeared to be influenced by information received from HR. In his first draft report he had been positive about Mr Ramphal and recommended he be found guilty of misconduct rather than gross misconduct, but this then changed and in later drafts (6 in total) he was more critical of Mr Ramphal and eventually concluded that “on the balance of probability, the claimant is guilty of gross misconduct in respect of both the misuse of the Corporate card and the misuse of hire cars funded by the Respondent. My recommendation is that he should be dismissed from his post”. This was quite different to his original findings that a written warning would suffice.
No information or evidence appeared to have been received by Mr Goodchild between the first and last report. From evidence submitted it was clear his change of heart had actually been influenced by information provided by Human Resources.
Despite this the Employment Judge decided that the decision to dismiss Mr Ramphal was a fair one.
Mr Ramphal appealed against the decision on the basis that the decision to dismiss him was improperly influenced by HR.
The Employment Appeal Tribunal Judge decided in Mr Ramphal’s favour stating that ‘If the integrity of the final decision to dismiss has been influenced by persons outside the procedure it, in my opinion, will be unfair, all the more so if the Claimant has no knowledge of it’.
The Judge also stated, ‘In my opinion, it is disturbing to note the dramatic change in Mr Goodchild’s approach after intervention by Human Resources. A number of proposed findings favourable to the Claimant or exculpatory as to his conduct are replaced by critical findings. A proposed finding of misconduct is replaced by a finding of gross misconduct and a proposal to impose a final written warning is replaced by a proposal, and then decision, to summarily dismiss the Claimant after Mr Goodchild had been informed that dishonesty was not a necessary ingredient of gross misconduct. This is clearly not the case if the finding is one of theft or fraud. The Employment Judge has not explained what it was that caused Mr Goodchild to take a more critical view of the Claimant’s conduct if it were not the influence of advice from Human Resources.’
The Judge concluded that an investigating officer is entitled to obtain advice from HR, but they should limit their services to advice only and should not seek to influence the decision of the investigating officer or decision maker.
The case was referred back to the original Employment Tribunal Judge to decide on whether the influence of HR was improper, and therefore whether the decision to dismiss Mr Ramphal was unfair.
Points to note
This case reiterates an earlier decision (2013) of the Supreme Court about the influence and involvement of HR.
The key points to note from this case is that the decision to dismiss should be made on the basis of the evidence obtained and investigation undertaken and not on the opinions of HR. The remit of HR departments or external advisors should be to the procedure and legal implications and should not influence the decision.
What action do you need to take?
- Check your disciplinary policy and procedure to ensure that they are clear and in line with the law;
- Ensure HR staff are adequately trained on the scope of their role;
- If possible try to separate out the investigation and disciplinary process so they are dealt with by different people;
- If you find yourself in this situation or require assistance with a disciplinary or investigation such as this contact me for a free initial discussion – 01983 89700, 023 8098 2006 or email firstname.lastname@example.org
Ramphal v Department for Transport – Employment Appeal Tribunal