Human resources professionals working in the education sector will know all too well that gauging the degree of advice or support a manager might need in conducting a disciplinary process can vary significantly. It will depend not just on the circumstances but on the individual manager, his or her experience, knowledge, confidence, etc. Even so, there is a line which cannot be crossed and that is when support starts to influence a manager’s thought-processes – a line which the courts suggest is clearly drawn but, as a recent case reveals, may not always prove quite so obvious in the midst of a disciplinary procedure. This can create a trap for the unwary adviser, particularly those assisting inexperienced or nervous managers.
A step too far?
The fundamental role of a human resources adviser in advising upon disciplinary proceedings is often espoused in the organisation’s disciplinary policy but in any event must be advisory only in nature. This is abundantly clear from the Supreme Court case of West London Mental Health NHS Trust v Chhabra, in 2013, where the court found that, in altering his investigative report into allegations of misconduct in line with suggestions from a third party, a case investigator had seriously undermined the disciplinary process and contributed materially to the court’s finding that the process had been unfair. Critically, the court found the third party intervention went beyond merely clarifying the report’s conclusions or ensuring all matters had been addressed but, instead, meant the report was no longer solely the work of the case investigator and was therefore not fair or acceptable.
In the Chhabra case there appears to have been clear evidence that amendments to the investigative report suggested by the third party, were incorporated by the case investigator into the final version. Furthermore, these amendments served to stiffen criticism of the employee under investigation. However, in recent weeks, the courts have had to consider the implications of less tangible influences upon a disciplining officer. What if, for example, the officer involved seeks advice upon a disciplinary issue and in consequence revises his or her report? Might that be the result of “clarification”, as permitted under Chhabra –or unreasonable influence in the decision-making process? Where that line might be drawn was the key question before the Employment Appeal Tribunal in the case of Ramphal v Department for Transport.
Latest court clarification
Mr Ramphal was a Government Aviation Security Compliance Inspector. A random audit of his travel expenses identified a number of questionable payments to his company credit card, issued solely for work-related travel. For example, certain personal fuel charges appeared, occasional meals unrelated to work, duplicate coffee purchases and use of hire cars for personal reasons. In a number of instances Mr Ramphal repaid sums which the audit revealed were not legitimate expenditure, claiming honest but mistaken use of his company card in those instances.
Concluding that the results of the audit warranted further consideration, the employer instigated a disciplinary investigation into Mr Ramphal’s expense claims. This was conducted by, Mr Goodchild, the Head of Land Security Compliance, an individual with no previous experience of conducting disciplinary matters. He was supported in his task by the Human resources team. Armed with initial (albeit unrecorded) advice from Human Resources as to process and procedure, Mr Goodchild produced an initial draft report on his findings. It is from that point onwards that evidence of the role taken by the Human resources came under court scrutiny, the initial draft report seeming to conclude many irregularities in Mr Ramphal’s expense claims were explainable and that Mr Goodchild considered a final written warning to be the appropriate sanction.
Following several subsequent communications and meetings with Human resources, few of which were recorded but which also involved a review of his report and of factual as well as legal issues, Mr Goodchild’s thoughts on the case changed significantly and he decided to dismissal Mr Ramphal for gross misconduct.
The about-turn in Mr Goodchild’s thoughts upon the investigation and appropriate sanction caused the court to question strongly the intervention of the Human Resources team and its potential influence. It was noted, for example that, as had occurred in the Chhabra case, following Mr Goodchild’s interactions with HR, favourable comments in his draft reports had been removed and replaced with critical comments and certain aspects of conduct qualified as “serious”. Somewhat ironically, as it transpired, the employer in this case had a clear disciplinary policy spelling out not only procedure but a service pledge from the Human resources which included the words, “We won’t make decisions for you, that’s your job, but we will be there for you”. This wording was noted by the court but not pivotal to the decision which followed and which focused on the actual degree of HR intervention, not upon breach of the policy.
In conclusion, the court formed the view that the Human Resources team had exceeded their roles, observing “the changes were so striking that they gave rise to an inference of improper influence” for which the Employment tribunal failed to offer clear and cogent reasons. The EAT was clear that, in the absence of such reasons, this undermined the essential principle that a claimant facing disciplinary charges and a dismissal procedure is entitled to expect that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he or she should make as to culpability. Accordingly, Mr Ramphal’s dismissal was unfair.
The Ramphal case has been referred back to the original tribunal, for the tribunal to explain adequately or identify what “advice” it understood led to Mr Goodchild’s ultimate conclusions and what effect this may have had on his views ie whether the influence of Human Resources had material effect upon his decision. With the EAT’s expressions of concern over the “disturbing” and “dramatic” change in Mr Goodchild’s approach after intervention by Human Resources, it seems somewhat unlikely that the tribunal will be in a position to answer the EAT’s concerns or the principles spelled out in Chhabra. Even were it to do so, however, a number of elements of HR management are pressed home by this latest case.
Confusion over privilege
One issue that arose at the outset of the Ramphal case was the employer’s claim that certain of its documents need not be disclosed to Mr Ramphal. The employer withheld them on the basis they were subject to legal professional privilege. The case nonetheless serves as a reminder that it is rarely safe for employers to rely on such arguments. Legal professional privilege is limited and applies only to communications between lawyers and their clients. It is only in cases where employers involve lawyers in a disciplinary process, therefore, that it is likely to be legitimate to withhold sensitive material, not in the ordinary course where the process is conducted internally.
Guidance for the future
So, what do these cases tell us in terms of distinguishing appropriate HR support in disciplinary proceedings and undue influence, however well-meaning?
- It is perfectly legitimate for a dismissing or investigating officer to seek guidance or advice from Human resources (and others);
- BUT, “guidance” and “advice” in this context is limited to matters of law and procedure and to ensuring all necessary matters have been addressed and achieve clarity - it is not to influence decisions over culpability or sanction;
- Be particularly cautious with novice dismissing or investigating officers or those seeking hand-holding - you can be too “helpful”;
- It can be useful to record advice to demonstrate the above limitations are satisfied;
- Disclosing evidence of previous examples and sanctions imposed by the employer can facilitate a consistent approach but must not be used to fetter the discretion of the dismissing or investigating officer on the particular facts;
- A review of written evidence or conclusions compiled by a dismissing or investigating officer is permissible but only to provide guidance and advice, as described above. Altering words and effect is inappropriate;
- The fact that a dismissing or investigating officer is adamant any decision was ultimately their own, is unlikely to counter allegations of undue influence;
- Be mindful of the intensity of support, to the extent this could indicate too great a degree of involvement;
- Avoid leading statements. For example (in Ramphal), “this demonstrates a question of integrity and trust which might be expected of a compliance officer” or “a single mistake might be understandable but at least three times seems at best careless”. Instead, focus on what issues the dismissing or investigating officer might need to consider, such as whether the evidence suggests trust and confidence is irreparably damaged.