The claimant in Ramphal v Department for Transport was accused of gross misconduct in relation to petrol expense claims and use of hire cars. An investigation was carried out and the claimant was ultimately dismissed. For reasons that are not clear and, it appears, not questioned by the claimant, the bulk of the investigation was carried out by the manager who ultimately took the decision to dismiss.
The manager was not familiar with disciplinary procedures and took advice from HR. His initial report suggested that he broadly accepted the claimant's explanations for what had happened and thought that a final written warning was the appropriate sanction. Following significant input from HR, however, the final report found the clamant guilty of gross misconduct and he was dismissed. The tribunal found that dismissal to be fair.
The EAT, allowing the claimant's appeal, quoted the Supreme Court in Chhabra v West London Mental Health NHS Trust – an investigatory report had to be the product of the investigator. In that case the involvement of someone other than the investigator in the preparation of a report undermined the fairness of the disciplinary process. Although Chhabra was in the context of whether there had been a breach of a contractual disciplinary procedure, the EAT felt it could be applied more generally.
In Ramphal v Department for Transport the changes between the first draft of the investigator's report and the final conclusions were so striking (and unexplained) that they gave rise to an inference of improper influence that the tribunal had failed to address. HR advice must be limited to questions of law and matters of procedure and process; they should not stray into areas of culpability or the appropriate outcome or sanction. The case was referred back to the tribunal for the extent of HR involvement to be carefully investigated.
This case is a useful reminder of the limits of the role that HR should play in the disciplinary process. Here there had been several draft reports before the final version was agreed, all of which had been subject to significant comments from the HR team. While it was clearly appropriate for HR to give advice on process issues, they should have ensured that there was no suggestion that they had become involved in the issue of culpability.