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Nick Bailey
Nick Bailey,
ASSOCIATE - SOLICITOR
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HR’s influence in disciplinary procedures
30 September 2015

Ramphal v Department for Transport          

This case decision from the EAT held as follows: A dismissing or investigating officer can seek guidance or advice from Human Resources (“HR”) but such advice should be limited to questions of law and procedure. It is not HR’s role to make decisions as to issues of culpability and in their advisory capacity they should remain impartial.

The facts

Mr Ramphal was employed by the Department for Transport as a Compliance Inspector. The Department for Transport conducted an investigation into possible misconduct by Mr Ramphal in relation to his expenses claims. Following an investigation and disciplinary hearing the investigatory and disciplinary officer submitted his initial report to HR. The report was partly critical of Mr Ramphal but included a number of favourable findings. The report concluded that Mr Ramphal was guilty of misconduct and should be issued with a final warning.

There was then approximately six months of communications between HR and the investigatory and the disciplinary officer. During this time subsequent drafts of the initial report became increasingly critical of Mr Ramphal until all the positive findings were removed and the report ultimately concluded that Mr Ramphal should actually be summarily dismissed for gross misconduct. Mr Ramphal was dismissed and brought a claim for unfair dismissal.

Decision

The Employment Tribunal dismissed the claim. It held that the investigatory and disciplinary officer did not appear to be “much influenced” by the input of the HR department and that the decision to dismiss was made by the investigatory and disciplinary officer and was within the band of reasonable responses. Mr Ramphal appealed.

The Employment Appeal Tribunal (“EAT”) allowed the appeal. It found that the changes to the report were so striking that they gave rise to an inference of improper influence by the HR department. The EAT held that the Employment Tribunal should have given clear and cogent reasons for accepting that there was no such influence.

In making its decision the EAT followed  the case of Chhabra v West London Mental Health NHS Trust in which the Supreme Court indicated that there was no impropriety in an investigating officer seeking advice from HR on questions of law and procedure and to ensure that all matters were addressed. However, where HR’s advice went beyond clarifying conclusions and strayed into answering questions of culpability, this would be improper. 

In the Ramphal case the finding of unfair dismissal was set aside and the case was remitted back to the original Employment Tribunal for re-consideration.

Conclusion

This decision confirms the principle addressed in Chhabra and provides an important reminder of the limited advisory role of HR in disciplinary situations.

An employee facing disciplinary charges and possible dismissal is entitled to assume that the decision will be taken by the officer leading the meeting.  HR is entitled to advise in these situations – indeed they are normally required to – and for inexperienced managers the support of a well-practised HR team is often essential. However it is critical to be aware of the limitations of their role and the need to be cautious as to the advice they give.

Therefore advice from HR must not address issues of culpability but instead be limited to questions of process and procedure. 

For more information about HR's role in disciplinary procedures or to find out more about how the Employment team can help you please contact the team on [email protected]  or 0118 925 7184.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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