…you gotta let me know…

With suitable apology to The Clash for misquoting their 1980s hit, the recent Employment Appeal Tribunal (EAT) case of Ramphal v Department for Transport (UKEAT/0352/14/DA) is a sobering reminder to HR teams of the importance of drawing boundaries between the respective roles performed during a disciplinary procedure.

Mr Ramphal had been accused by his employer of possible misconduct in relation to his expenses, and the use of hire cars. A manager was duly appointed to conduct the investigation, and to act as the dismissing officer if necessary. The manager was inexperienced in handling disciplinary proceedings, and sought advice and assistance from the HR team during the process. Unfortunately, it subsequently came to light that the involvement of HR had gone beyond merely advising on matters of law and procedure, and had resulted in the manager changing his final decision from one of misconduct with a final written warning (as recorded in the first draft of his report) to one of gross misconduct and summary dismissal (as appeared in the final draft). In the eyes of the EAT, this degree of intervention by HR was excessive and impermissible. In the words of the judge:

“…Human Resources must be very careful to limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability, let alone advising on what was the appropriate sanction as to appropriate findings of fact in relation to culpability insofar as the advice went beyond addressing issues of consistency."

The lessons to be gleaned from this decision are clear:

  • Where possible, avoid combining the roles of investigator and disciplinary officer;
  • Make sure that managers and HR alike have had proper training on handling disciplinary procedures and know the boundaries as to what they can and cannot say;
  • If in doubt, seek formal legal advice – this has the added advantage that documents are then covered by “legal professional privilege”.

If he stays, there may well be trouble, but if he goes (to the tribunal), there will be double…