Decision: In Ramphal v Department for Transport which was heard in the Autumn, the EAT looked at HR’s influence on the decision to summarily dismiss an employee for gross misconduct. Whilst the investigating officer found that there was misconduct on the part of the employee, he did not believe it warranted dismissal. Instead he recommended a final written warning. Following an extensive period of communication between the investigating officer and HR, his findings changed to gross misconduct and summary dismissal. The employee brought a claim for unfair dismissal. This failed in the Tribunal. However, the EAT allowed the employee’s appeal and the case was remitted to the same Tribunal to consider whether the influence of the HR team had been improper, and if so, whether this had had any material effect on the investigating officer’s ultimate decision. The remitted hearing is expected to be heard in 2016.

Continued impact: The EAT’s decision suggests that HR’s advice in disciplinary decisions should be limited to law and procedure, unless the employer’s disciplinary process provides for them to take an active role in the substantive decision. Where it is clear that HR has strongly influenced a disciplinary decision, there is a risk that this will taint the fairness of any dismissal. It is unclear from this case the extent to which a decision maker can ask for advice or assistance in coming to his/her decision. The fact that the case has been remitted indicates that it was not necessarily unfair for HR to act the way they did in this case. Whilst we wait for the Tribunal’s decision next year, employers should consider carefully the extent to which their HR advice goes beyond policy and procedure and, if it does, whether this is consistent with the provisions of the disciplinary policy. In cases where advice goes beyond policy and procedure and this is not contemplated by the disciplinary policy, consider whether the advice should be given by a lawyer to allow it to  be argued that legal privilege applies to avoid having to disclose the advice.

Ramphal v Department for Transport