Employment Eye - Substantial influence by HR can lead to unfair dismissal

James Gutteridge explains recent and important guidance on the scope of HR's role in disciplinary investigations.

The background

The three main 'ingredients' for a fair misconduct dismissal are that

1. the employer believed the employee to be guilty of misconduct;
2. the employer had reasonable grounds for that belief; and
3. the employer carried out a reasonable investigation.

As part of a 'reasonable investigation' an investigating officer (usually a manager) will be appointed to undertake an investigation and it is normal practice for that investigating officer to consult their Human Resources (HR) department for guidance in this process.

In the 2013 case of Chhabra v West London Mental Health NHS Trust, the Supreme Court considered that it was appropriate for HR to provide general advice on an investigation – such as matters of procedure – but that it would be improper for HR to go further than providing general clarification.  

The scope of HR's proper input was looked at again in a case published earlier this month, Ramphal v Department of Transport.

The facts

Mr Ramphal was entitled to a subsistence allowance, and a hire car. He also had a company credit card, with which to pay for the hire car and other expenses.

An investigation into Mr Ramphal's expenses highlighted around 50 items which apparently required explanation. However, Mr Ramphal was able to explain these items to his manager, and no further action was taken.

Further concerns regarding Mr Ramphal's hire car and expenses were, however, raised in June 2013, and the Department for Transport (DFT), appointed Mr Goodchild to carry out an investigation. As Mr Goodchild had not previously acted in disciplinary proceedings, he met with HR officers and familiarised himself with the DFT’s disciplinary procedure handbook.

A disciplinary hearing took place and Mr Goodchild sent the first draft of his report to HR. Although this report was partly critical, it found that Mr Ramphal's misuse was not deliberate and that he provided plausible and consistent explanations. Mr Goodchild’s conclusion was that there should be a finding of misconduct, with the sanction of a final warning.

However, following six months of consultations with HR, Mr Goodchild's report was subjected to a considerable overhaul:

• Mr Goodchild’s factual findings were  changed
• favourable comments were replaced with critical comments
• the overall view of culpability became one of gross negligence; and
• the recommended sanction became summary dismissal for gross misconduct instead of a final written warning.

Mr Ramphal was dismissed, and brought a claim in the employment tribunal for unfair dismissal. An employment judge concluded that the decision was based upon as much investigation as was reasonable in the circumstances and that the decision to dismiss was within the band of reasonable responses open to a reasonable employer. The case of Chhabra (see 'background' above) was not referred to.

Mr Ramphal appealed.

The decision

The Employment Appeal Tribunal (EAT) allowed the appeal, setting aside the decision on unfair dismissal, and remitting the case back to the employment tribunal to be reconsidered in the light of Chhabra.

The EAT noted that the effect of Chhabra was that there is an implied term that the report of an Investigating Officer for a disciplinary enquiry must be the product of their own investigations. As such, the dramatic change after intervention by HR suggested that HR had an improper influence on Mr Goodchild's findings.  Furthermore, HR had clearly involved themselves in issues of culpability, which should have been reserved for Mr Goodchild.

What does this mean for me?

This decision is useful in confirming that the principle in Chhabra has general application outside of the specific context of the NHS. 

This decision also helpfully reminds Human Resources professionals that an Investigating Officer is entitled to call for advice from an HR team; but that advice must be limited to questions of law, procedure and process and must avoid straying into areas of culpability.

Whilst the line between providing detached, neutral advice and substantive advice on the merits of a case may be a fine one, this case highlights that it is crucial that this boundary is maintained.  In particular, whilst HR may highlight what sanctions might be available, it is important that HR does not advise on what sanction should be imposed. Significant influence by HR in the outcome of an investigation could potentially compromise the fairness of the investigation process and, consequently, the fairness of the dismissal as a whole.