Employment Law Guidance: Legitimate Scope of Role For HR During a Disciplinary Procedure 'Ramphal case'

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[2013] 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:

para 55:

'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.

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Employment Law Barrister Wins Dyslexia Case

The BBC has reported that an ex-employee of 'Starbucks' the coffee chain as won her disability discrimination battle. Employers should be aware that dyslexia is covered under the Equality Act 2010. The relevant law is as follows:


A disabled person is defined as having "a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities." Substantial is defined as ‘more than trivial’.

"In some cases, people have coping or avoidance strategies which cease to work in certain circumstances (for example, where someone who has dyslexia is placed under stress). If it is possible that a person’s ability to manage the effects of an impairment will break down so that effects will sometimes still occur, this possibility must be taken into account when assessing the effects of the impairment." [Paragraph B10, Guidance to the Definitions of Disability, Equality Act.]

Charles Price Employment Law Barrister

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Another challenge to tribunal fee regime

A Significant employment law decision expected in 2016 –Employment Tribunal fees, R (on the application of Unison) v Lord Chancellor and another (Supreme Court). 2016 will see Unison have one last attempt at challenging the introduction of fees for bringing an employment tribunal claim. Case to be heard in the Supreme Court. While it was rejected by the Court of Appeal, it did say the decline in claims is “sufficiently startling”. For more information see:

Lexology

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At last Government to simplify tax on settlements

It looks as if The Government is at last to simplify a delineated system of ascribing tax to settlements. We all know that tax and employment tribunal decisions have been at odds in the past and in order to advise clients you have to tip toe around case law and guidance of Byzantine complexity. Well fortunately, The Government have decided to launch a consultation.

The best bit is that the proposal as it stands (para 10) will remove the distinction between the tax and NICs treatment of contractual and non-contractual termination payments. This will hopefully remove the majority of the complexity and misunderstanding within the existing system.

This blanket exemption it is proposed will be set at a lower threshold than £30,000. It is reported at 4.16 that:

'One approach the government is considering is to create a new exemption which increases proportionately with the number of years of service the employee has completed. This would create a new fairer exemption which will proportionately reward long serving, lower paid employees.'

We shall wait and see whether there is devil in the detail.

Responses to the consultation can be emailed to: employmentincome.policy@hmrc.gsi.gov.uk.

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Companies to publish gender pay gap information

The Government has confirmed that it will legislate under S.78 of the Equality Act 2010 to require companies with 250 or more employees to publish gender pay gap information. It has published a consultation paper on the detail of the regulations to be made under S.78, seeking views on the level of gender pay information to be required and the frequency of publication.


It asks whether the information should be the overall difference between the average earnings of men and women as a percentage of men's earnings, or whether it should be broken down by full-time and part-time employees, or by grade or job type. It also asks whether employers should be required to provide additional, contextual information, explaining any pay gaps and setting out what remedial action they intend to take; and how often employers should be required to publish such information. Under S.78 EqA, the information can be required to be published annually at most.  

The consultation closes on 6 September 2015. The regulations are expected to be made in the first half of 2016, although implementation may be delayed to give businesses time to prepare.

Link to consultation document: https://www.gov.uk/government/consultations/closing-the-gender-pay-gap

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Updated list of prescribed people/bodies for whistleblowing purposes

The Department of Business, Innovation and Skills has updated its list of prescribed persons and bodies to whom individuals can make a protected disclosure see this download

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New law introduced in May under the Small Business, Enterprise and Employment Act 2015

The first commencement order made under the Small Business, Enterprise and Employment Act 2015 has been published. From 26th May 2015, this brought into effect the following:

Section 153 which inserts a new section 27A into the Employment Rights Act 1996 to prohibit clauses that prevent exclusivity in zero hours contracts and a new section 27B which gives the Secretary of State power to make further provision dealing with the anti-avoidance aspects.

Section 152 which inserts section 19A into the National Minimum Wage Act 1998, to provide that the financial penalty in a notice of underpayment will be set at 100% of the arrears owed to each worker to who the notice relates, subject to a maximum of £20,000 per worker. Previously the £20000 limit applied to each notice of underpayment.

Section 149 which inserts section 49B in the ERA 1996 to provide the Secretary of State with a power through regulations to prohibit defined NHS employers from discriminating against a job applicant because it appears to the NHS employer that the applicant has made a protected disclosure.

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