How far can HR be involved in disciplinary hearings?
Investigating issues of potential misconduct and taking disciplinary action will almost always be down to a manager (normally one manager investigating, and another conducting any disciplinary hearing) – not the employer's HR department, no matter how large that may be. But how far can HR be involved in the process and outcome of a disciplinary hearing? In the recent case of Ramphal v Department of Transport UKEAT/0352/14, the Employment Appeal Tribunal (EAT) was highly critical of an HR department's intervention that appeared to change a manager's conclusions about the level of the misconduct and the penalty that should be imposed.
Mr Ramphal was an Aviation Security Compliance Inspector for the Department for Transport (DfT) who had been employed by the civil service for nearly twenty years. He was responsible for inspections from Cornwall to Scotland and was required to spend most of his time on the road. For this he was entitled to hire cars and subsistence expenses, which he paid for with a credit card issued by the DfT.
In 2012, Mr Ramphal was audited for his transport and subsistence claims. Some 50 items were flagged up for further investigation. Mr Ramphal discussed them with his line manager, and no further action was deemed necessary. However, his line manager was asked to check further, and again he discussed specific items with Mr Ramphal, such as excessive fuel, hire cars including personal use, meals and coffee. According to Mr Ramphal, on two occasions he had mistakenly used the employer's credit card instead of his own, and he repaid those amounts.
A more senior manager, Mr Goodchild, was then appointed to investigate. Mr Goodchild had no experience of investigating or conducting disciplinary proceedings. Mr Goodchild met with HR officers and familiarised himself with the disciplinary procedure, the difference between misconduct and gross misconduct, and possible penalties. Mr Ramphal was able to justify the vast majority of the items queried, but there were some outstanding matters and mistaken purchases which Mr Ramphal refunded to the DfT. Mr Ramphal was summoned to a disciplinary hearing, apparently for gross misconduct, also conducted by Mr Goodchild. (It is somewhat surprising that the same manager carried out both the investigation and the disciplinary hearing in an organisation of this size, and is contrary to the advice of the ACAS Code of Practice on Disciplinary and Grievance Procedures.
Mr Goodchild produced an investigation report. However, his first draft after the first disciplinary hearing differed significantly from the final report issued some six months later, when Mr Ramphal was dismissed for gross misconduct. Mr Ramphal issued an Employment Tribunal (ET) claim for unfair dismissal.
At the ET hearing, the significant differences between the different drafts of the investigation report and final report were revealed. For example, in the initial report, Mr Goodchild found that Mr Ramphal's misuse was not deliberate, his explanations about petrol were "consistent" and "plausible" and that he had made a persuasive argument. Whilst he did not think Mr Ramphal's explanation was fully convincing for the amount of fuel claimed, he concluded that Mr Ramphal had justified a much higher level of fuel use than his line manger expected. Mr Goodchild recommended a finding of misconduct and a final written warning.
After the first draft, Mr Goodchild discussed a number of changes with HR. At one point, the Head of HR sent a memo to Mr Goodchild, saying that it was "surely unreasonable to purchase food close to his home", questioning whether it was understandable that Mr Ramphal had used the wrong credit card three times when his personal one was a different colour, and questioning Mr Ramphal's integrity. Mr Goodchild's subsequent draft reports oscillated between being unable to find that the misuse was deliberate and recommending only a final written warning, to concluding instead that it was deliberate, and that Mr Ramphal "knowingly misused the Corporate Card and hire cars on a regular basis". Findings favourable to Mr Ramphal were removed, and the final report concluded that Mr Ramphal should be dismissed for gross misconduct.
The ET found that Mr Ramphal had not been unfairly dismissed. Mr Ramphal appealed to the EAT which concluded that the ET had not been aware of a Supreme Court ruling concerning the intervention of HR in an investigation report. According to the EAT, Chhabra v West London Mental Health NHS Trust had established there was an implied contractual term that an investigation report must be the work of the case investigator manager and not HR. Whilst an HR department can assist in providing advice to questions of law and procedure and process, to ensure all necessary matters have been addressed and to achieve clarity, it should avoid straying into areas of culpability. The EAT concluded that if the ET had considered Chhabra, it would have had to explain why Mr Goodchild had reached such a dramatic change of view after the intervention of HR, when no new evidence had come to light. The EAT therefore sent the case back to the same ET to consider whether HR had had an improper influence on Mr Goodchild's decision.
Lessons for employers
The decision is very useful for HR staff and managers alike. It demonstrates the boundaries of HR intervention, as well as the potential for different drafts of documents to be carefully scrutinised by an ET and the EAT. In this case, the HR department had effectively invited Mr Goodchild to change his findings about whether Mr Ramphal's misuse of the credit card and hire cars was deliberate, and whether Mr Ramphal was credible. It appeared to have changed Mr Goodchild's initial conclusion of simple misconduct meriting only a final written warning to one of gross negligence justifying summary dismissal.
In the words of the EAT, "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…It was not for Human Resources to advise whether the finding should be one of simple misconduct or gross misconduct..." (although HR is permitted to address issues of consistency). The EAT commented that an employee is entitled to assume that the decision maker has not been lobbied by other parties; and that the employee should be told of any changes in the allegations, and any representations made by others (in this case HR) that go beyond legal advice. Interestingly, this case also shows that the EAT considers that the principle in Chhabra applies to all disciplinary investigations, and is not limited to the contractual disciplinary procedures relevant to the NHS. Employers should ensure that any report produced by an investigating officer is truly the result of their own investigations and conclusions. The case also highlights the dangers of preparing various drafts of investigation reports which include suggested amendments and recommend different outcomes.