In the case of Ramphal v Department for Transport, the Employment Appeal Tribunal (EAT) has set out strict limitations on the role of HR in a disciplinary process. It has said:
“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...”
The EAT considered a case where a line manager both investigated a case of alleged false expense claims and also decided on the appropriate disciplinary sanction. His initial report considered that there was an issue of misconduct but not gross misconduct. The report went through several revisions following input from HR. In particular, the evidence was reassessed and more critical findings were made. The conclusion was a finding of gross misconduct and a recommendation of dismissal. To this extent, the EAT’s ruling makes sense. HR is there to advise, not to assess the evidence. But the EAT went on to say:
“…let alone advising on what was the appropriate sanction.”
This can’t be right. Take the example of a disciplinary officer who carefully and correctly finds evidence of sexual harassment and theft by a director but who then decides to give only a verbal warning. HR must be entitled to advise on the appropriate sanction. Indeed, many line managers running a disciplinary process look to HR for advice on reasonableness and fairness. In the case of Ramphal the real issue was interference in evidential findings so it is doubtful the EAT meant to make such a broad ruling about the choice of sanction. What this case really shows us is:
- it is dangerous to combine the role of investigator and disciplinary officer. If the initial report had been that of a separate investigating officer, this case would not have arisen;
- some discussions and decisions are best left verbal;
- for others it is best to have legal advice and the documents are then covered by “legal professional privilege”.