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HR departments and disciplinary proceedings

To what extent can a human resources department influence disciplinary proceedings? Hussain Abdul-Ameer from the Leeds Employment Law team considers a recent Employment Tribunal claim.

Questions such as this go to the heart of whether an employer has carried out a fair and reasonable investigation and procedure generally prior to dismissing an employee. Failure to do so can give rise to a claim for unfair dismissal. In Ramphal v Department for Transport,  the Employment Appeals Tribunal (EAT) provided guidance on this important issue.

Mr Ramphal was employed by the Department for Transport (DfT) as an aviation security compliance inspector. As part of his role, he was required to undertake a considerable amount of travelling and was provided with a credit card to pay for expenses; all personal expenses using the card were prohibited. In February 2012, a random audit of Mr Ramphal’s expenses claims was undertaken and around 50 discrepancies were flagged. Following an investigation, Mr Ramphal was able to explain these expenses and no wrongdoing was found.

Disciplinary proceedings

However he was investigated again later in 2012, following further concerns regarding his expenses. A manager, Mr Goodchild, was appointed to carry out the investigation and to also act as the disciplinary officer. Mr Goodchild was inexperienced in dealing with disciplinary proceedings and asked for advice from the DfT’s HR department.

Gross misconduct

The original draft reports prepared by Mr Goodchild were partly critical but indicated several factors in favour of Mr Ramphal. The report recommended a finding of misconduct with the sanction of a final written warning. However, a series of communications between the HR department and Mr Goodchild led to various new drafts of the report. The favourable findings were removed and replaced with critical comments and the final decision was changed to summary dismissal for gross misconduct.

It appeared that the HR department had extended their level of advice beyond the scope of law and procedure to deal with culpability as well.

Mr Ramphal was dismissed and brought a claim for unfair dismissal.

The ‘Burchell test’ and establishing fair dismissal

For a dismissal to be found fair on the grounds of conduct, the Employment Tribunal would need to find that at the time of the dismissal:

  • The employer believed the employee to be guilty of misconduct;
  • The employer had reasonable grounds for believing that the employee was guilty of that misconduct;
  • The employer had carried out as much investigation as was reasonable in the circumstances when it formed that belief on those grounds.

The tribunal will also consider whether dismissal fell within the range of reasonable responses. It is not, however, the role of the tribunal to decide whether it would have dismissed.

Tribunal decisions

At the first instance, the Employment Tribunal observed that it was reasonable for an inexperienced investigating officer to seek guidance from their HR team. The tribunal found that Mr Ramphal’s dismissal was fair, stating that the employer had acted reasonably.

On appeal, the Employment Appeals Tribunal relied on the Supreme Court decision in Chhabra v West London Mental Health NHS Trust [2014]. Here, it was held that an investigator can seek advice from a HR department. However, this was limited to questions of law and procedure, and to ensure that all matters were addressed.  They were not able to delve further into areas of culpability. Unfortunately, the Employment Tribunal does not appear to have been referred to Chhabra.

The Employment Appeals Tribunal found that the HR advice provided to Mr Goodchild amounted to undue influence on the outcome of the report. The fact that there were so many changes to the draft following the HR intervention demonstrated that they had gone beyond providing advice on law and procedure.

Disciplinary procedure

The EAT said “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.”

The EAT found that, as the Employment Tribunal had not considered Chhabra in their judgment and that there was clear evidence of improper influence, the appeal was allowed and the matter was to be remitted to the Employment Tribunal for further consideration.

Points for employers

What is clear is that an investigating officer is able to consult with their HR team when carrying out disciplinary proceedings. HR teams provide invaluable support during disciplinary proceedings and their advice is important when considering the right course of action to take. However this advice has to be limited to questions of law, procedure and consistency of sanctions. HR professionals have to be mindful of the limitations on the advice they give and avoid dealing with matters of culpability by, for instance, suggesting the finding a disciplining officer might make in relation to an allegation. Failure for HR to maintain a neutral stance when discussing disciplinary action could lead to any dismissal being found unfair.

For more information on any of the issues raised in this article or to discuss how the issues might affect your business, contact Hussain Abdul-Ameer on 0113 368 7816 or email habdul-ameer@lyonsdavidson.co.uk

Posted on Sep 22nd, 2015 by Lyons Davidson