To what extent can an HR advisor influence the recommendation of an investigating officer or a disciplinary decision maker? This was the issue in Ramphal v Department of Transport, a case which provides important commentary on the role - and particularly the limits - of an HR advisor in a disciplinary situation. Mr Ramphal was summarily dismissed for gross misconduct following a protracted investigation into allegations of expenses violations by an aviation security compliance inspector.
The investigating officer who was appointed to undertake the investigation in June 2012 had never previously conducted a disciplinary investigation and so, unsurprisingly and quite properly, sought assistance from senior HR colleagues as well as familiarising himself with the relevant disciplinary procedure handbook and noted the distinctions between misconduct, gross misconduct and the appropriate penalties.
The first version of the investigation report suggested that the investigating officer originally viewed matters as meriting a warning for a finding of misconduct. Further versions of the report placed greater emphasis on aspects of the alleged misconduct, particularly the frequency of events, and the categorisation of the Claimant’s conduct and the recommended disciplinary sanction increased first to a final written warning for misconduct, and finally to that of summary dismissal for gross misconduct.
Between June 2012 and February 2013 there were six versions of an investigation report, various meetings and fairly extensive correspondence between the investigating officer (who was also the dismissing officer under the Department of Transport’s procedure) and HR colleagues. Mr Ramphal was dismissed some 9 months later in March 2013, and brought proceedings for unfair dismissal. Although the Tribunal ruled that he had been fairly dismissed the EAT allowed the appeal and remitted the case.
The EAT characterised the progress of the versions as “….a complete change of view on factual findings and recommendations as to sanction” noting particularly that “favourable comments are removed and replaced with critical comments.”
Applying the principles in Chabra v West London Mental Health Trust the EAT stated that an HR advisor’s role should be restricted to guidance around process and the legal issues, rather than making a decision on the facts and culpability. The latter aspect should be dealt with by the investigating officer or the decision maker.
The EAT stated the following:
“ … an employee facing disciplinary charges and a dismissal procedure is entitled to assume that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability, and that he should also be given notice of any changes in the case that he has to meet so that he can deal with them, and also given notice of representations made by others to the dismissing officer that go beyond legal advice, and advice on matter of process and procedure.”
The EAT remitted the case to the Tribunal to determine whether the changes to the investigating/dismissing officer’s report were as a result of, paraphrasing, such excessive influence by the HR professionals concerned.
The principle suggested by the EAT may be easier to state than to apply with certainty in practice. If an experienced HR advisor points to issues in a report which may have struck them as having been overlooked or under-emphasised and raises this, whether in response to an explicit request from an inexperienced investigating officer or not, does that amount to “lobbying” ? Likewise, if an HR advisor identifies that a decision-maker has misunderstood previous information about the employer’s characterisation of the significance of certain misconduct is it “lobbying” to point that out?
Seeking to be fair to the EAT, it has remitted the case precisely to test whether there are appropriate explanations on the part of the employer to oust the inference that the actual decision-makers in the process were the HR colleagues who had had no involvement in the investigation as opposed to the dismissing officer.
The EAT was conscious that the impression created by the various versions of the reports was one of saying to an inexperienced investigating/dismissing officer “no - you have not got that correct, go away and do it again until you reach the “correct” answer”. But that may not have been what happened in practice.
Some of the concerns were exacerbated by the particular procedure and may not have arisen had the functions of investigation and ultimate decision-making been carried out by different personnel. Similarly a more experienced decision-maker may have more readily identified areas for further investigation or have been more familiar with the corporate importance attached by the Department of Transport to the need for scrupulous compliance with expenses policies in an age of austerity when dealing with public funds. That said, the disciplinary guidance or the handbook accompanying expenses procedures could equally have made this clearer.
This case does not mean that an HR advisor cannot suggest amendments to an investigation report, but what it does do is remind us that there are limits to the HR advisor’s role. The report needs to be the investigator’s report and not that of an HR advisor. Large organisations also need HR input in any disciplinary decision or recommendation to ensure that decision makers or investigating officers are aware of consistency of outcomes in similar situations.
It also seems disproportionate to suggest that if an initial briefing on the significance of particular elements of misconduct is missed it becomes inappropriate “lobbying” on the part of an employer to seek to correct it and that the disciplinary process might require the appointment of a new investigating officer, for example.
One practical consideration in managing this risk is the provision of consistent, comprehensive training to all potential investigating and dismissing officers, focusing on common issues and using case studies. If this something that could benefit your organisation please do get in touch as our Employment Team regularly advise on and train in this area.