In Ramphal v Department for Transport, the Employment Appeal Tribunal (EAT) provides clear guidance on the extent of the role that human resources (HR) departments may legitimately perform during a disciplinary procedure.
In this case, The respondent appointed Goodchild, a manager (not HR) to investigate possible misconduct in relation to the expenses the claimant, Ramphal, had claimed and his use of hire cars. In the first draft of the investigation report Goodchild made several findings in Ramphal's favour, including that the misuse of hire cars was "not deliberate” and that the explanations given by the claimant in respect of expenditure on petrol were "plausible”. Goodchild went on to suggest the level of culpability and appropriate sanction applicable. Goodchild's first report concluded that Ramphal was guilty of misconduct rather than gross misconduct and that he should be given a final written warning as to his future conduct.
No further evidence was uncovered but following meetings with HR however, the findings Goodchild made in Ramphal's favour were removed from the report. Conversely, the final report concluded that Ramphal had knowingly misused his employer's credit card and was guilty of gross misconduct. Goodchild decided Ramphal should be summarily dismissed on the basis of his final report.
The employment tribunal ultimately concluded that Goodchild had taken the decision himself rather than HR and that the dismissal was fair.
On appeal to the EAT, Mr Ramphal relied upon the Supreme Court's decision in West London Mental Health NHS Trust v Chhabra UKSC 80, which held that there was an implied contractual right to a fair disciplinary process, and that — while HR could provide advice on questions of procedure, including ensuring that all necessary matters have been addressed in a manner which achieves clarity — "the report had to be the product of the case investigator”.
The EAT and Judge Serota QC allowed the appeal on the basis that there appeared to be a strong case that HR had significantly overstepped the permitted boundaries of its involvement, and in doing so gave the following important guidance:
'In my opinion, an Investigating Officer is entitled to call for advice from Human Resources; but 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, let alone advising on what was the appropriate sanction as to appropriate findings of fact in relation to culpability insofar as the advice went beyond addressing issues of consistency. It was not for Human Resources to advise whether the finding should be one of simple misconduct or gross misconduct.'
To conclude an investigating officer is entitled to call for advice from HR, but HR must limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability. HR could also give advice in respect of consistency of previous decisions in similar cases. If the integrity of the decision to dismiss has been influenced by persons outside the procedure it will be unfair, especially if the claimant has no knowledge of it and has thus been unable to comment on it.