The EAT has held that, when assisting internal disciplinary matters, Human Resources should focus their advice on law and procedure and not influence decisions on culpability.
HR are usually asked for guidance by managers dealing with disciplinary investigations or hearings. The extent of the role HR should take was considered in the recent case of Ramphal v Department for Transport (2014). The EAT found that role should focus on advising about relevant law and procedure and should not stray into deciding whether an employee is guilty of misconduct.
The advice given by HR could, for example, include suggestions about what disciplinary sanctions are available for managers to consider. However, in light of this case, their advice should not include deciding whether an employee is guilty of misconduct or dictating what sanction should be issued. If HR did so, it may bring into question the fairness of that disciplinary decision.
Mr Ramphal was employed by the Department of Transport (“DFT”) and was given a company credit card to be used for work related expenses only.
Despite highlighting this, the DFT became aware of Mr Ramphal having used the company credit card for personal expenditure and commenced a formal investigation into his potential misconduct.
Once completed, the investigating officer sent a first draft report to DFT’s HR department for review. The report made a number of findings regarding Mr Ramphal’s culpability, including that his misuse of the company credit card was unintentional and that his explanations for doing so were consistent and plausible. It recommended Mr Ramphal be issued with a final written warning.
Having reviewed the report and discussed it with the investigating officer, a number of amendments were made by HR. These included replacing findings of fact that were favourable to Mr Ramphal with more critical comments. As a result, the overall view of the investigating officer changed so that they recommended Mr Ramphal had committed gross misconduct and should be summarily dismissed.
Mr Ramphal’s subsequent claim for unfair dismissal was dismissed by an employment tribunal. However, the EAT allowed his appeal remitting his case to be reconsidered. The EAT found the investigating officer must form their own view on culpability. In this case, HR had involved itself with issues of culpability and had improperly influenced the investigating officer.