Mr I R Ramphal -v- Department for Transport UKEAT/0352/14/DA

The Employment Appeal Tribunal (EAT) has recently handed down a decision which is highly relevant to HR practitioners who regularly advise managers on disciplinary and grievance procedures. It also endorses guidance given in another recent case, Chhabra -v- West London Mental Health Trust [2014] ICR 194.

Background

The Department of Transport investigated Mr Ramphal’s expenses and use of hire cars. Mr Goodchild was appointed as the manager to carry out the investigation and, if relevant, to act as the dismissing officer. Mr Goodchild’s first draft report was relatively favourable to Mr Ramphal, finding that his conduct was not intentionally dishonest, and that he was:

“guilty of misconduct rather than gross misconduct and that he should be given a final written warning…”

Mr Goodchild then sought advice from his HR department. The guidance from HR was not confined to the correct process and the potential level of sanction, but included direction on the claimant’s culpability. It was apparent that after input from HR, the draft report was altered, and Mr Goodchild’s final draft read:

“…my recommendation is that he should be dismissed from his post.” 

Mr Ramphal was subsequently dismissed by Mr Goodchild and he brought a claim at the Employment Tribunal for unfair dismissal, which was unsuccessful; he appealed to the EAT on the basis that the decision to dismiss him was tainted. No new evidence had come to light between Mr Goodchild submitting his original draft to HR, and his subsequent change of heart as to his conclusions on Mr Ramphal’s conduct. Mr Ramphal argued that Mr Goodchild was “inappropriately lobbied” by HR and that his dismissal was outside the range of reasonable responses because of that improper intervention.

The decision

The EAT relied on the recent decision of the Supreme Court in Chhabra. The facts of that case are unusual. Dr Chhabra successfully applied to the High Court for an injunction restraining the respondent Trust from proceeding to a disciplinary hearing for gross misconduct against her. Part of the issue was that an investigator was appointed to investigate allegations against Dr Chhabra, and produce a report of her findings. Dr Chhabra was then notified that the allegations of misconduct had amounted to gross misconduct and as such, would be referred to a disciplinary panel. It subsequently came to light that the employing Trust’s HR director had suggested amendments to the investigation report, some of which were accepted by the case investigator, to amend the investigation findings so as to strengthen the criticism of Dr Chhabra’s conduct. The Supreme Court found that as part of the Trust’s own procedure, the investigatory report should have been the product of the investigator, but it was not.

In the Ramphal case, His Honour Judge Serota QC stated that it was

 “...disturbing to note the dramatic change in Mr Goodchild’s approach after intervention by Human Resources”.  

He agreed that an investigating officer was entitled to seek advice from HR, but HR must be careful to limit advice to questions of law and procedure. They should steer away from advising on findings of fact and issues of culpability. In particular, he rejected the finding of the original employment judge that Mr Goodchild had simply reassessed the situation in light of advice from Human Resources.

The claim was remitted to the original Employment Tribunal, to decide whether the influence of HR was improper.

Comment

HR clients often tell us that managers form their own strong views on the outcomes of disciplinary and grievance processes without HR input. The point is an important one. An employee who is facing disciplinary charges, or indeed raising a grievance, is entitled to have the matter determined by the officer in charge of the hearing. HR can advise on the correct process or procedure, and also on the level of appropriate sanctions. However, the disciplinary or grievance officer should not be unduly influenced by any third party, including HR, as to the conclusions he or she should reach. It is the responsibility of each individual officer to form his or her own view based upon the evidence available, and managers should be reminded of their responsibilities in this regard. HR should be mindful not to overstep their boundaries when issuing advice, so as to jeopardise the integrity of any internal procedure and leave it open to claims. No issue was taken during the case as to why it was that Mr Goodchild was appointed both to investigate and reach a disciplinary decision; his appointment to both roles is questionable and could have raised an argument as to unfairness.