We consider Ramphal v Department for Transport UKEAT/0352/14, where the EAT gave guidance on the role and limitations of an employer's HR department when providing advice to investigating and disciplinary officers.

Facts

Mr Ramphal was employed by the Department for Transport (DFT) as an aviation security compliance inspector. An investigation was launched by the DFT following possible misconduct by Mr Ramphal in relation to his expenses.

A manager, Mr Goodchild, was appointed to carry out the investigation and act as disciplinary officer if necessary. Mr Goodchild was inexperienced in dealing with disciplinary proceedings and, as a consequence, received help and advice from the DFT HR department. 

Following a disciplinary hearing, initial draft reports prepared by Mr Goodchild were partly critical but indicated several factors in favour of Mr Ramphal and initially he recommended a finding of misconduct with the sanction of a final written warning. However, following further communications between Mr Goodchild and the HR department, the favourable findings were removed and replaced with critical comments and the recommendation was changed to summary dismissal for gross misconduct.  

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

Evidence later produced at trial indicated that the HR department had advised on both factual and legal issues that went beyond matters of law, procedure and the level of appropriate sanction with a view to achieving consistency.

Employment tribunal decision

The employment tribunal (ET) observed that it was not wrong for the investigating/disciplinary officer to seek and receive guidance from HR.  

It considered that, due to Mr Goodchild being in an unfamiliar role, he sought and received advice that was aimed at the integrity of the decision. Additionally, the ET noted that Mr Goodchild was keen to get the decision correct, particularly because it was his first case and, in light of the advice received from others, he made the decision to dismiss but this had not been much influenced by HR. The judge concluded that the decision was based on as much investigation as was reasonable in the circumstances and the decision to dismiss was within the band of reasonable responses open to a reasonable employer. 

The ET therefore held that the dismissal was fair. Mr Ramphal appealed.

EAT decision

In reaching its conclusions, the EAT relied on Chhabra v West London Mental Health NHS Trust [2014] ICR 194.  In that case the Supreme Court indicated that there was no impropriety in a case investigator seeking advice from an HR department on questions of procedure, presentation of the report, clarity and to ensure that all matters were addressed.  However, where the advice went beyond clarifying conclusions, this would be improper.  

The Supreme Court in Chhabra effectively held that there was an implied term that the report of an investigating officer for a disciplinary enquiry must be the product of the case investigator.  The EAT reflected this view, adding that it would be exceptionally important that, where the investigator had a dual role as a dismissing officer, the guidance of the Supreme Court was followed.

The EAT found that the HR advice to Mr Goodchild invited changes to both his findings in relation to culpability and credibility. The changes in his report following HR intervention were considered 'disturbing' and were so striking as to give rise to an inference of improper influence.

It went on to advise that any advice from HR should be carefully limited to questions of law and procedure and should avoid straying into areas of culpability and appropriate sanction.

Ultimately, the EAT concluded that the decision on unfair dismissal could not stand and remitted the matter to the ET for further consideration.

Comment

The role of an employer's HR department is often critical to investigating and disciplinary officers when they are producing their reports. For managers unfamiliar with current law and procedure, having the support of an HR team is invaluable.

However, HR personnel must be aware of the limitations of their role, and when the provision of advice strays into influencing an outcome.  HR teams should be mindful to avoid advising on culpability and, in particular, on appropriate sanctions unless they relate to consistency, otherwise there is a risk that any dismissal could be unfair.