Ramphal v Department for Transport
Following this case, if a disciplinary officer’s decision to dismiss is improperly influenced by members of an HR team, it will be unfair.
The employee, Mr Ramphal, was reimbursed for business expenses. However, following an audit of his expense claims, irregularities were identified and an investigation was carried out by Mr Goodchild from the Department of Transport. The matter was referred to a formal disciplinary process.
Mr Goodchild, who also acted as the disciplinary officer, was inexperienced in disciplinary procedures. He sought, therefore, detailed guidance from the Department for Transport’s HR department. This advice was not limited to matters of law, procedure and level of sanctions. It, also, addressed issues of Mr Ramphal’s credibility and level of culpability.
Mr Goodchild’s first draft report contained several favourable findings. He had found that Mr Ramphal’s misuse of expenses was not deliberate, his explanations given were plausible and the arguments made were very persuasive. He concluded that Mr Ramphal was guilty of misconduct only and should be given a final written warning.
However, following further communication with HR, the report was amended and the decision was changed to an outcome of gross misconduct and summary dismissal. No new evidence came to light between the two versions of the report.
Mr Ramphal was summarily dismissed and brought a claim against his ex employer for unfair dismissal.
The original employment tribunal found that the decision to dismiss was fair: it was based on a reasonable investigation and the dismissal was within the band of reasonable responses. The judge held that the decision was ultimately made by Mr Goodchild and that he did not appear to be much influenced by HR.
Mr Ramphal appealed.
The Employment Appeal Tribunal (EAT) considered the previous case of Chhabra. This case established an implied term that the report of an investigating officer for a disciplinary enquiry must be the product of their own investigations. The EAT found that the changes to the report were so striking that they gave rise to an inference of improper influence. Therefore, the employment judge should have given clear and cogent reasons for accepting that there was no such influence. If there had been such improper influence the dismissal would be unfair. The case was returned to the employment tribunal to consider this point.
Points to note
Due to the nature of their role, HR team members are always going to be closely involved in the disciplinary process. They need to be on hand to assist managers with the process to ensure that a fair procedure is carried out. However, there is clearly a limit on how far they can be involved in the decision making process. In its decision, the EAT confirmed that an investigating or disciplinary officer is entitled to call for advice from HR but HR must limit advice to questions of law, procedure and/or process; HR should avoid straying into areas of culpability. It is particularly important that HR do not advise on the appropriate sanction (other than exceptional circumstances – for example when their input is needed to ensure consistency of sanctions). While HR involvement is often used to avoid claims for unfair dismissal, somewhat ironically, heavy involvement can, in itself, lead to such a claim.