The EAT has issued a stark warning to HR departments not to interfere with a decision-maker's independence when it comes to deciding degrees of guilt. The case illustrates the risks of producing early drafts of an outcome letter without the protection of legal professional privilege.
HR departments routinely advise on disciplinary and grievance processes. In 2013, in the context of a public sector NHS employment dispute (Chhabra v West London Mental Health NHS Trust  UKSC 80), the Supreme Court confirmed that HR's remit ought to be confined to:
- ensuring the correct procedure was followed;
- checking the investigation had covered all relevant matters;
- reviewing the outcome letter for clarity; and
- advising the decision-maker on how similar misconduct had been dealt with in the past to achieve consistency.
In Ramphal v Department for Transport (UKEAT/0352/14), the EAT reviewed the Supreme Court's guidance and ordered a fresh hearing of a case in which the original Employment Tribunal had found the dismissal to have been fair. It is helpful to put the facts in context:
- Mr Ramphal was an Aviation Security Compliance Inspector.
- He spent much of his time travelling in a company car, and was entitled to expenses for subsistence while he was on the road.
- Following an audit of petrol use, personal use of the car and other "suspicious" expenses, a disciplinary investigation was initiated under a Mr Goodchild, as investigating and decision-making officer.
- Mr Goodchild, who had not dealt with a disciplinary matter before, met Mr Ramphal and undertook a detailed investigation and sent a draft report to HR.
- The draft made some criticisms of Mr Ramphal, but found his explanations to be credible, and that any misuse had not been deliberate. He recommended a finding of misconduct and the imposition of a final warning.
- There then followed six months of to and fro between HR and Mr Goodchild revising the outcome letter, after which all the initial exculpatory findings had been removed and replaced with negative ones. The finding was transformed into one of gross negligence, with summary dismissal as the sanction.
Given the extreme nature of HR's intervention in this case, it is surprising the initial Employment Tribunal regarded the dismissal as fair, and not at all surprising that this was overturned on appeal. The EAT was at pains to criticise the wholesale revision of Mr Goodchild's original findings, stating that HR should not advise on culpability. The case was sent back to the Employment Tribunal for a new hearing.
The case gives several lessons for HR advisers:
- The Supreme Court's guidance applies to all disciplinary investigations, not just those in the public sector or where a contractual disciplinary policy is in place.
- Overstepping the mark, and interfering with the decision-maker's assessment of whether an employee is guilty will usually render the final decision unsafe.
- Influencing the sanction is also inappropriate, except where this is driven by a desire to achieve consistency of outcome.
- Producing a number of drafts of an outcome letter, or discussing a draft over email, is dangerous. Those drafts and/or emails are usually disclosable documents in any litigation, and will enable the Employment Tribunal to examine each iteration of the document. Significant changes will inevitably require a clear and cogent explanation.
- Involving lawyers in the process can go some way to mitigating that risk because legal advice is not usually disclosable as it is privileged. However, clients should beware of assuming that every document or email sent to, or copied to, a lawyer will always be protected by privilege, and specific advice should be sought as early in the process as possible so that the right protocols are put in place to maximise the chance of privilege being available.