Craig Rajgopaul writes for our monthly column “View from Littleton Chambers” in Tolley’s Employment Law Newsletter. This article first appeared in the September 2015 edition.
In Ramphal v Department for Transport, the
Employment Appeal Tribunal (EAT) provided clear guidance on the extent of the
role that human resources (HR) departments may legitimately perform during a disciplinary
The respondent appointed Goodchild, a manager with no experience of
conducting disciplinary procedures, to investigate possible misconduct in
relation to the expenses the claimant, Ramphal, had claimed and his use of hire
cars. Goodchild made several findings in Ramphal’s favour in the first draft of
his investigation report, including that the misuse of hire cars was “not
deliberate” and that the explanations given by the claimant in respect of
expenditure on petrol were “plausible”. Goodchild’s first report concluded that
Ramphal was guilty of misconduct rather than gross misconduct and that he
should be given a final written warning as to his future conduct.
Following meetings with HR (but without any further evidence being
uncovered), the findings Goodchild made in Ramphal’s favour were removed from
the report; the final report concluded that Ramphal had knowingly misused his
employer’s credit card and was guilty of gross misconduct. Goodchild decided
Ramphal should be summarily dismissed on the basis of his final report.
The employment tribunal was “particularly exercised” by the apparent
changes of mind by Goodchild, but ultimately concluded that Goodchild had taken
the decision himself and that the dismissal was fair.
On appeal to the EAT, Mr Ramphal relied upon the Supreme Court’s
decision inWest London Mental Health NHS Trust v Chhabra
UKSC 80, which held that there was an implied contractual right to a fair
disciplinary process, and that — while HR could provide advice on questions of
procedure, including ensuring that all necessary matters have been addressed in
a manner which achieves clarity — “the report had to be the product of the case
The EAT allowed the appeal on the basis that there appeared to be a
strong case that HR had significantly overstepped the permitted boundaries of
its involvement, and in doing so gave the following important guidance:
- An investigating officer is entitled
to call for advice from HR, but HR must be “very careful” to limit advice
essentially to questions of law and procedure and process and to avoid straying
into areas of culpability.
- HR can give advice in respect of
consistency (eg, advising what other decisions have been taken by the employer
on similar facts) but must not advise on what the appropriate sanction is in
respect of the investigator (or decision-maker)’s findings of fact. “It was not
for human resources to advise whether the finding should be one of simple
misconduct or gross misconduct.”
- An employee facing disciplinary
charges and a dismissal procedure is entitled to assume 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. He should be
given: notice of any changes in the case he has to meet so that he can deal
with them; notice of representations made by others to the dismissing officer
that go beyond legal advice; and advice on matters of process and procedure.
- If the integrity of the decision to
dismiss has been influenced by persons outside the procedure it will be unfair,
all the more so if the claimant has no knowledge of it.
My experience is that HR professionals frequently go well beyond the
bounds of what the EAT has now clarified are the limits of HR’s proper
involvement. Going forwards, HR professionals need to heed the EAT’s guidance
on the extent of the advice that HR may provide and must resist the temptation
to influence findings as to culpability/sanction (or if they do so, inform the
employee and give them the chance to comment). Employers should also remember
that draft reports produced for the purposes of seeking legal advice from a
qualified lawyer (but not from HR), and the contents of the lawyer’s advice,
will be privileged and not seen by the tribunal. Privileged advice may avoid
some of the difficulties faced by the employer in this case.