How far can HR officers influence disciplinary procedures?
In the recent case of Ramphal v Department of Transport, the EAT gave a stark warning to HR departments on how far they can go to influence a disciplinary procedure.
Mr Ramphal was employed by the Department of Transport. His job involved a lot of travelling throughout the UK and, as a result, submitting a lot of expense claims.
In due course, these expense claims came under increasing scrutiny. Eventually, there was a disciplinary hearing.
A manager, David Goodchild, was appointed as both investigating and disciplinary officer. Being inexperienced, he consulted and relied on the HR department. Who, interestingly and perhaps ironically, had an internal ‘service pledge’ that stated:
“We won’t make decisions for you, that’s your job, but we will be there for you.”
Mr Goodchild’s first draft investigatory report was prepared to give Mr Ramphal the benefit of the doubt.
It included comments to the effect that Mr Ramphal was:
“…guilty of misconduct rather than gross misconduct and he should be given a final written warning as to his future conduct.”
But over time, and with increasing HR involvement, the report went through as many as six drafts. The final report removed all favourable conclusions and stated:
“Having given careful consideration to all the facts of the case, I am minded to conclude 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.”
The disciplining officer (Mr Goodchild) accepted the recommendations of the investigating officer (Mr Goodchild again), and Mr Ramphal was dismissed.
The DoT won at the Tribunal, but Mr Ramphal was successful in the EAT.
The Employment Judge had not given enough weight to Mr Goodchild’s change of heart and the lack of any evidence to suggest this was anything other than to do with HR ‘guidance’.
The EAT stated:
“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… and also given notice of representations made by others to the Dismissing Officer that go beyond legal advice and advice on matter of process and procedures.”
What this decision means for you
The first point to make is that all six drafts of the investigatory report were still in existence and were due to be shown to the other side on the basis of the duty of disclosure that exists in Tribunal processes.
Whilst the EAT could not be sure what order the six reports had come in, it was obvious there was a significant change of attitude towards Mr Ramphal over time.
On that basis, it’s important to be able to establish if a Disciplining Officer (or indeed a manager making redundancies or dealing with a grievance) made any decision. And more importantly, that it was their decision and not one suggested for them.
This means it’s sometimes a very difficult line for HR Officers to tread. Particularly where busy managers, who didn’t want the job in the first place, rely on you to advise them and help them with outcome letters.
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