In terms of frequently asked questions, this one is right up there – how much input can HR have on the content of a disciplinary decision? The case of Ramphal v Department of Transport handed down by the Employment Appeal Tribunal ("EAT") last week provides some useful guidance on this question (and also a bit of insight into some common pitfalls).
The facts of this case are reasonably straightforward. Mr Ramphal, an Aviation Security Compliance Officer for the Department of Transport was subject to disciplinary proceedings in relation to allegations of improper expense claims, including excessive petrol use, and use of a hire care for personal reasons. Mr Goodchild was appointed to investigate the allegations and to make findings following the disciplinary hearing. The disciplinary process appears to have been protracted with the investigation starting in June 2012, the hearing taking place on 13 August 2012 and reconvened on 16 November 2012 and a decision to dismiss being communicated on 5 March 2013.
Mr Goodchild had not previously acted in disciplinary proceedings and, understandably, took advice from HR. In the course of taking such advice, it appears that Mr Goodchild changed his initial views as set out in the first draft of his report. The various drafts of the report which were disclosed by the employer showed a complete change of view on Mr Goodchild's factual findings and recommendations as to sanction. Favourable comments were removed and replaced with critical comments; the overall view of the culpability becomes one of gross negligence from an initial conclusion that the misuse was not deliberate, and the recommendation of sanction becomes summary dismissal for gross misconduct instead of a final written warning for misconduct.
The Employment Tribunal at first instance found that Mr Goodchild made a decision which was reasonably open to him (applying the usual test in BHS Limited v Burchell) and Mr Ramphal's claim for unfair dismissal was dismissed. His appeal to the EAT was successful on the basis that the Employment Tribunal's finding that Mr Goodchild was adamant that the ultimate decision was his did not adequately address the issue of the extent to which he may have been influenced as to the merits of his decision on both culpability and sanction. In the EAT's opinion the Judge in the Employment Tribunal had failed to adequately explain or identify the "advice" that led Mr Goodchild to his ultimate conclusion and what effect this may have had on the views of Mr Goodchild. The EAT was clear that HR had involved themselves in issues of culpability which should have been reserved for Mr Goodchild, and that Mr Goodchild's discussions with HR clearly went beyond issues of procedure and law, including discussion over his emerging findings with HR. The judge in the EAT concluded that the changes in his findings were so striking that they gave rise to an inference of improper influence and the Employment Judge should have given clear and cogent reasons for accepting that there was no such influence. The case was therefore remitted back to the Tribunal to decide whether the influence of HR was improper and if so whether it had a material effect on the ultimate decision.
The EAT provided guidance that an investigating officer is of course entitled to call for advice from HR, but that HR must be very careful to limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability or the appropriate sanction, insofar as the advice went beyond addressing issues of consistency. The EAT indicated that it was not for HR to advise on whether the finding should be one of simple misconduct or gross misconduct.
I confess I have some sympathy with Mr Goodchild in this case; I cannot count the number of times I have been asked as a lawyer whether I consider a matter to be sufficiently serious to amount to gross misconduct, which I am sure is also a pretty common question to HR. The judgment of the Employment Tribunal suggests that Mr Goodchild was anxious to get his decision correct, taking significant advice, which is of course understandable having never been involved in disciplinary proceedings previously. In this case, however, that advice appears to have strayed further than it should have done. For example, some of the written advice provided by HR included observations that it was "surely unreasonable to purchase food close to his home" as a business expense, and that Mr Ramphal was at best "careless in the use of his credit card". HR also commented that "a single mistake might be said to be understandable but at least three times seems at best careless and again merits comment in the Decision." This advice plainly extended beyond questions of law and procedure and in the EAT's view was inappropriate.
This judgment is therefore a word of warning that HR needs to be clear with any investigating officer that their findings need to be their own. It is also a salutary reminder that drafts of decisions will usually be disclosable in subsequent litigation (unless of course legal professional privilege applies). Where legal advice is being taken, it is prudent to ensure that any draft decision is marked as prepared for the purposes of taking legal advice and to bear in mind that if HR provides separate advice into the content of the draft decision at the same time that HR advice will still usually be disclosable in subsequent litigation (even if copied to a lawyer).
While the judgment did not say this, I suspect that the passage of time in this case may not have helped the employer's case, given the lengthy period between the initial investigation and the decision to dismiss. If a decision is reached promptly albeit following a proper investigation, then there is usually less scope for significant changes in approach to develop over time, as appears to have happened in this case.