Disciplinary procedures - when HR’s advice converts to HR’s influence
The Employment Appeal Tribunal (the EAT) has clarified the role Human Resources should play in disciplinary procedures. In the judgment of Ramphal –and- Department of Transport (UKEAT/0352/14/DA), the EAT held that, whilst a disciplinary or investigatory officer may seek guidance from Human Resources, when one considers matters of law and procedure, advice should not extend to issues of credibility and culpability.
The case facts
The employer commenced an investigation into possible misconduct by Mr Ramphal relating to his expenses and his use of hire cars. Mr Goodchild (the investigation officer), was 'inexperienced in disciplinary proceedings' and throughout his investigations report, received advice from the HR department. Mr Goodchild's first draft report considered Mr Ramphal's actions to constitute only misconduct, with a consequent and limited recommendation of a final written warning.
However the final investigation report, with input from HR, concluded that Mr Ramphal was in fact guilty of gross misconduct and recommended summary dismissal.
The ET decision
The Employment Tribunal at first instance held that Mr Goodchild had not been materially influenced by HR. Rather, he had reconsidered the matter in light of the advice and guidance received from HR and concluded that dismissal was appropriate.
The EAT decision
The EAT disagreed. It held that HR's input went 'beyond' giving advice on procedure, and appeared to have influenced and encouraged Mr Goodchild to alter his views on both culpability and credibility. The EAT found it 'disturbing to note the dramatic change' in Mr Goodchild's approach following HR's intervention: a number of draft findings in his initial report which were favourable to Mr Ramphal were replaced by critical findings; the proposed finding of misconduct was replaced by a finding of gross misconduct; and a recommendation for a final written warning was replaced by a recommendation for dismissal.
In Practice - Considerations for You
This EAT judgment serves as a critical and timely reminder to managers and HR to tread carefully when carrying out investigation and disciplinary procedures. The independence of an investigation officer in preparing investigation findings is essential.
Nevertheless, HR plays an invaluable role in guiding managers (and employees) through disciplinary procedures. It is imperative that a fair process is followed, in accordance with the organisation's disciplinary procedure, and also in compliance with current law and practice. Managers are often insufficiently trained in the HR process to navigate this journey unassisted. Failure to conduct a fair process will lead to a Tribunal finding of a procedurally unfair dismissal.
What happens if HR is presented with an investigation report or a draft disciplinary report that has issues which have been overlooked or under-emphasised? The first point to note is that draft reports are discoverable (unless there are protected by legal privilege), and a Tribunal may explore updates and revisions made by any party and the reasons behind those amendments. That said, this judgment does not mean that an HR adviser cannot suggest amendments to an investigation report – HR input can be particularly invaluable to ensure consistency is being applied for example. However, care should be considered as to whether HR's input amounts to issues of interference in matters of culpability, which must always remain a matter solely for the investigation or disciplinary officer to determine.
Therefore, both managers and HR should be mindful of the necessity of a manager's independence throughout an investigation / disciplinary process, so as to ensure that a fair process is followed.
The Ramphal series of cases are classic examples of Tribunals finding a decision to dismiss unfair, not on factual grounds, but on process alone. As such, they are salutary reminders of the critical importance of procedures within the workplace.
The risk attributed to failing to follow the correct procedure should by no means be forgotten, and managers should seek advice and clarification from HR in respect of matters of law and procedure. Managers should be provided with the appropriate comprehensive training on investigations and disciplinary procedures to ensure that they are aware of their obligations to conduct a fair process.
For further information please contact a member of our Employment & Benefits team (NI).