HR teams – know your limits!

A recent Employment Appeal Tribunal case has looked at the role and influence HR teams can play when advising dismissing and investigating officers on handling disciplinary matters (Ramphal v Department for Transport (judgment available here).

The case decided that such advice should be limited to matters of law and procedure and to ensuring that all necessary matters have been addressed and achieve clarity.

In this case, Mr Ramphal’s expenses were investigated and the first draft of the investigation report found some issues and recommended a written warning. However, after liaising with the HR team, the final investigation report decided upon dismissal for gross misconduct for misuse of the company credit card. The Employment Tribunal found Mr Ramphal to have been fairly dismissed for misconduct. However, Mr Ramphal successfully appealed this decision and the case was remitted back to the Tribunal. The EAT decided that the Employment Tribunal had not explained what had caused the disciplinary manager to take a more critical view of Mr Ramphal’s conduct. The EAT went so far as to say that the changes to the sanction was so striking that they gave rise to an inference of improper influence and the Employment Tribunal should have explained why this was not the case.

As a result of this case, HR teams should take particular care with the advice that they provide in order to ensure that they do not cross the line and influence the investigating officer or decision-maker as to the culpability of the subject of the disciplinary action.

Practical steps that we can suggest HR teams take would be to:

1. Record HR advice in writing in order to evidence that teams have not improperly influenced the decision maker;
2. Provide training to the disciplinary investigating manager on making decisions and the disciplinary process;
3. Obtain legal advice from an employment solicitor which would be subject to legal privilege and would therefore not be disclosable in Tribunal proceedings (for example to obtain advice on the first draft of the investigation report);
4. Advise managers at the end of the disciplinary hearing on the position and discuss next steps so that no decision document is produced prior to HR involvement in the decision making. At this stage, information can be provided by HR in relation to similar cases and what the sanction was that was given (without risking HR making the actual decision in the case in question).

We have discussed this case with a number of our clients who have been very concerned by the impact of this judgment. As suggested at (2) above, employment training for managers is one option for a employers to avoid the Ramphal problem.

Should you wish to discuss this case or the cost effective employment law training that Ashtons Legal can provide, please contact Claire Sleep via email on claire.sleep@ashtonslegal.co.uk or telephone 01223 431094.