The recent case of Ramphal v Department for Transport offers valuable advice for investigating officers and HR professionals on their respective roles in disciplinary proceedings.
An investigation was launched by the employer into possible misconduct by Mr Ramphal in relation to his expenses and use of hire cars. A manager, Mr Goodchild, was appointed to conduct the investigation and act as disciplinary officer if necessary.
Mr Goodchild was inexperienced in such matters and sought the advice of the employer's HR department. The first draft of his report contained a number of favourable findings - that Mr Ramphal's credit card misuse was not deliberate and that some of his explanations were both compelling and plausible. He concluded that he was minded to find Mr Ramphal guilty of misconduct rather than gross misconduct, and that he should be given a final written warning.
However, following significant input from HR over a long period of time, further drafts became more critical of Mr Ramphal. Favourable comments were removed and replaced with critical comments; the overall view of culpability went from misconduct to gross misconduct, and the recommended sanction was changed to dismissal, which was subsequently effected.
Mr Ramphal brought a claim against his employer for unfair dismissal.
At appeal from a finding by the Employment Tribunal that the dismissal was fair, the Employment Appeal Tribunal found that "the advice given by Human Resources went significantly beyond advice limited to process and procedures". The advice given elicited changes to Mr Goodchild's findings relating to both culpability and credibility, the result being an otherwise inexplicable dramatic change in Mr Goodchild's findings and recommendations.
This influence by the HR advisors was found to have tainted the findings of fact from Mr Goodchild's investigation, such that the dismissal itself was potentially unfair. The case has been referred back to the Employment Tribunal for a rehearing.
Advice for employers
This case demonstrates the importance of HR professionals, as well as investigating and dismissing officers, being correctly advised or reminded of their distinctive roles in investigations.
Investigating officers must be entitled to call for advice from HR, who provide invaluable support and advice during such proceedings, but this advice must be carefully limited to advice on questions of law, procedure and process. As tempting as it can be, care must be taken not to stray into areas of culpability or appropriate sanction. An employee facing disciplinary charges is entitled to assume that the decision will be taken by the appointed officer, without lobbying from other parties as to findings on culpability.
So, the lesson to be learnt is for investigating officers to take ownership of their findings and for HR professionals to maintain a neutral stance in relation to disciplinary action to avoid risking an unfair dismissal.