Human Resources staff are used to helping employers follow the correct procedures to reach the right conclusion. When managers are investigating or chairing formal hearings, the support and assistance of HR may well make the difference between a fair and an unfair dismissal. But HR must be careful not to cross the line.
In the recent case of Ramphal v Department for Transport, the EAT held the DfT’s HR Department went well beyond what would be expected of them and may well have unfairly influenced the outcome of a disciplinary hearing.
Surprisingly for an organisation with an HR department, the investigator (who had not previously dealt with disciplinary proceedings) also chaired the disciplinary hearing. He had read the disciplinary procedure, understood the differences between misconduct and gross misconduct and decided that Mr Ramphal should receive a final written warning for misconduct on the basis that his actions had not been deliberate.
However, the HR Department then became heavily involved, substantially amending findings favourable to Mr Ramphal in the disciplinary officer’s written report and substituting them with critical comments to the extent that the final draft recommended that Mr Ramphal be dismissed for gross negligence.
The EAT found that the HR department had exceeded their remit and that the changes made to the report regarding the Mr Ramphal’s culpability gave rise to an inference that they had improperly influenced the decision-maker. The EAT therefore set aside a finding that Mr Ramphal had not been unfairly dismissed.
As the EAT held, although a dismissing or investigating officer is entitled to seek guidance from HR, such advice should be limited to matters of law and procedure (including consistency of sanction) and to ensuring that all necessary matters have been addressed and achieve clarity. Any employee 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 should make as to culpability.
This case also shows how an employer may be caught out by having to provide disclosure of any drafts of reports or correspondence, whether in tribunal proceedings or in response to a data subject access request.