Giving advice on disciplinary matters

HR managers are regularly called upon to advise on disciplinary matters, and it is normally expected that they will offer firm guidance to a manager charged with carrying out an investigation or chairing a disciplinary hearing. A recent case has made it clear that there are limits as to how far HR advisors can go in involving themselves in these matters. James English from Hempsons explains.
 
 
In Ramphal – v – Department for Transport (2015), the Claimant worked for the DfT as a compliance inspector. His territory stretched from Cornwall to Scotland, so he regularly claimed a significant amount in subsistence and travel expenses. He had been issued with a credit card. Following a random audit, he had a discussion with his line manager about a number of issues concerning his expense claims. The Claimant accepted he had made a number of minor errors, and agreed to repay a minor amount. At first, his line manager was satisfied with the Claimant’s explanations, and no further investigation was required.
 
However, another manager was instructed to carry out a further investigation in order to determine if there was a case to answer. This second manager had no experience of disciplinary proceedings and, as a result, he was heavily dependent on the DfT’s HR team for guidance. The Staff Handbook, which dealt with the conduct of investigatory and disciplinary proceedings, even contained the following service pledge from HR: ‘We won’t make decisions for you, that’s your job, but we will be there for you.’ Famous last words….
 
The HR department in fact became heavily involved in the actual content of the investigatory report, and the Legal Department was also consulted. Whilst the first drafts of the investigatory report were balanced, recording what it described as the Claimant’s ‘plausible’ explanations, and recommending a finding of misconduct and a sanction of a final written warning, this changed over time. Several drafts and significant input from HR later and these favourable comments were removed. The recommendation was also changed to summary dismissal on the grounds of gross negligence, amounting to gross misconduct. The Claimant was dismissed, and he then brought a claim of unfair dismissal.
 
The Employment Tribunal noted the department’s ‘lax procedures and absence of detailed guidance’ on expenses claims. Nevertheless, it went on to find that the decision to dismiss the Claimant was fair. The Claimant appealed.
 
The Employment Appeal Tribunal (EAT) upheld the appeal, in a judgment that contains quite trenchant criticisms of the process that had been adopted. The EAT found that the HR department had gone significantly beyond its accepted role of providing advice limited to process and procedures.
 
The EAT pointed out that a necessary ingredient of the allegations was a dishonest intention but this had not featured in the advice from HR. Their advice led to a reshaping of the manager’s views, changing his findings on culpability and credibility, in a way that the EAT found ‘disturbing’. There was no fresh evidence or new material to explain his change of position. This gave rise to an inference of ‘improper influence’. The EAT went on to warn:
 
…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…. It was not for Human Resources to advise whether the finding should be one of simple misconduct or gross misconduct. … I consider that an employee facing disciplinary charges and a dismissal procedure is entitled to assume that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability….
 
The case was remitted back to the same tribunal to reconsider these issues. It is important to appreciate that draft investigatory reports, like most documents relating to investigatory and disciplinary proceedings, should be disclosed during proceedings although not everything that should have been disclosed in this case was. What was disclosed made the changes in the draft reports, under HR’s influence, apparent.
 
Some HR managers will be surprised by the EAT’s decision, and they will see it as their function to guide an inexperienced, and busy, manager towards the right decision. The EAT’s decision makes it clear that HR managers need to exercise caution in the advice they give, and how they give it. It is important to recognise that the decision, whatever the sanction might be, remains that of the investigator or dismissing manager. They will be the one asked to give evidence, under oath, to explain why they reached the decision they did and what that decision was based on should the employee bring an employment tribunal claim.
 
If the manager who purportedly took the decision to dismiss in fact did no such thing but wrongly delegated that responsibility to HR, then they may make the dismissal unfair. If this amounts to a breach of contract as well, it could expose their organisation to a significant claim for compensation.
 
 James English, Hempsons