The EAT has held that excessive intervention by Human Resources (HR) in a disciplinary investigation into misconduct rendered a subsequent dismissal unfair. Whilst it is appropriate to advise on matters of law or procedure, HR should not seek to alter or influence decisions on culpability or sanction. This case confirms that the decision in Chhabra v West London Mental Health NHS Trust - a recent case giving guidance on HR involvement - is not confined to the specific context of NHS disciplinary procedures (Ramphal v Department For Transport).
In order to show that it has dismissed fairly for misconduct, an employer must satisfy the test established by Burchell v British Home Stores, namely that:
- it believed the employee to be guilty of misconduct;
- it had reasonable grounds for believing the employee was guilty of misconduct; and
- in forming such a belief on reasonable grounds, it carried out as much investigation as was reasonable in all the circumstances.
In Chhabra v West London Mental Health NHS Trust (Chhabra), the Supreme Court provided guidance on the appropriate role for HR professionals in the context of disciplinary investigations. The Court held that it was permissible for HR to ensure that an investigatory report covers all relevant subject matter, and that it is clear and well-presented. It is also acceptable for HR to advise on law and procedure. However, employers will start to risk unfair dismissal liability when HR moves beyond these areas and starts to influence findings of culpability and recommendations on penalties. However, Chhabra concerned a disciplinary framework which was specific to doctors and dentists working within the NHS. It was, therefore, unclear whether its principles had general application.
The claimant’s role as an Aviation Security Compliance Inspector required him to spend a lot of time travelling. The respondent provided him with a hire car and a credit card to pay for it and other expenses. He was not allowed to use the credit card for personal expenses and there was a general limit on his subsistence allowance when he was close to home.
In 2012, the claimant’s line manager performed checks on the claimant’s expenses claims after a number of items were flagged for investigation during a routine audit. These checks revealed a number of items requiring further consideration, including high fuel expenditures and possible personal use of hire cars.
In June 2012, the respondent appointed a Mr Goodchild to carry out an investigation and disciplinary procedure. Mr Goodchild had no experience of conducting disciplinary proceedings, so he met with HR officers and was advised on the procedure to follow. He also read the disciplinary procedure handbook and familiarised himself with the concepts of misconduct and gross misconduct and the available penalties.
An investigatory meeting took place in August 2012 and, in September 2012, Mr Goodchild sent the first draft of his report to HR. The report was critical of the claimant, but also contained a number of more favourable findings; for example, he found that the claimant’s misuse of the hire car and credit card was not deliberate, and that the claimant offered plausible and consistent explanations for his fuel expenditure. His final finding was of misconduct, with a recommendation of a final written warning.
There followed several meetings and email exchanges between Mr Goodchild and HR between September 2012 and March 2013. Over this time period, it appeared that HR had encouraged Mr Goodchild to change his decision, by communicating their own judgements of the claimant’s behaviour. For example, they had suggested that it was unreasonable for the claimant to purchase food so close to his home and that his use of the credit card had been “careless”. Over the course of the six months, the favourable findings were gradually removed by Mr Goodchild from the report and the sanction changed to one of gross misconduct with the recommendation of dismissal.
Employment Tribunal decision
The Employment Judge found that the investigation had been reasonable in all the circumstances, that Mr Goodchild had been “anxious to get his decision correct” and it had been open to him to seek advice and to come to the conclusion he had, particularly given his inexperience. Although it noted that Mr Goodchild had substantially changed his decision after lengthy intervention, it accepted Mr Goodchild’s submission that the final decision was his own product. However, the Tribunal did not consider Chhabra at all.
The failure to consider Chhabra formed the crux of the claimant’s appeal. The Judge was disturbed by the dramatic change in the findings of the first report and those of the final report. For example, Mr Goodchild had initially found that there was no dishonesty, but the claimant was eventually dismissed for dishonest use of a credit card. It was apparent that one of the influencing HR officers believed that there had been fraud. This was one of many instances where HR had advised on issues of culpability and credibility and, following Chhabra, this went beyond their remit.
The Judge found that Chhabra had established an implied term to the effect that an investigatory report should be the product of the investigatory officer’s investigations and nothing else.
Ramphal provides useful clarification that the clear guidance laid down by Chhabra has universal application. In order to avoid dismissals being unfair, HR should limit itself to matters of law and procedure, and should be sure to train staff appropriately in the light of this decision. Particular care should be taken with inexperienced disciplinary officers such as Mr Goodchild, who needed “handholding” throughout the process. There is no reason why HR should not play a supportive role in these cases, but they should be clear from the outset as to which matters they can advise upon.