A year and a half on from the emergence of #MeToo, workplaces are still adjusting to the cultural change it has inevitably ushered in for businesses large and small. Many HR teams have wrestled with the repercussions of the movement, including an increase in complaints of harassment and bullying, both contemporary and historical. Against this backdrop, it is worth considering aspects of the processes through which such complaints are investigated and addressed.
HR professionals we advise are usually aware that they should appoint an independent member of staff – often the accused’s direct manager – to conduct the investigatory process which follows such a complaint in line with their internal policy. It can, however, be tempting for HR to become heavily involved in the investigation process to ensure it is being properly run, especially if the investigator lacks experience, and to guide the investigator toward an appropriate outcome. However, this instinct can be a dangerous one, which can lead to findings of unfair dismissal further down the line.
What the Courts say
When working out what is (and is not) an acceptable amount of HR involvement in an investigation, it is sensible to refresh our memories of the relevant cases on this area. The Supreme Court first made the point in 2013 (in Chhabra v West London Mental Health NHS Trust) that an “[investigation] report was to be the work of the case investigator”. While it is acceptable for HR to assist with this “to ensure all necessary matters have been addressed and to achieve clarity”, anything beyond that could undermine the fairness of the disciplinary process.
This decision was followed by the Employment Appeal Tribunal (EAT) in Ramphal v Department of Transport (2015). This provides some useful guidance on the 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.
Mr Goodchild had not previously acted in disciplinary proceedings and, understandably, took advice from HR. The various drafts of the report showed a complete change of view on Mr Goodchild's factual findings and recommendations as to sanction, with the implication that the changes arose from HR input. Favourable comments were removed and replaced with critical comments; the overall view of culpability became one of gross negligence from an initial conclusion that the misuse was not deliberate; and the recommendation of sanction became summary dismissal for gross misconduct instead of a final written warning for misconduct.
The EAT was clear that HR had involved themselves in issues of culpability which should have been reserved for Mr Goodchild alone. Indeed, the EAT concluded that the changes in his findings were so striking that they gave rise to an inference of improper influence by HR.
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 that advice essentially to questions of law and procedure and process. The EAT indicated that it was not for HR to advise on whether the finding should be one of simple misconduct or gross misconduct.
These concerns were reiterated the following year in Dronsfield v University of Reading. I won’t go into the details of the case, save that it concerned a disciplinary investigation, which resulted in the University dismissing an employee. The interesting point for us is that the final version of the investigation report had been significantly altered following advice from HR and their in-house legal team.
In this case, the EAT was surprised that the report was produced as if it was the joint responsibility of the investigator and HR, especially as it appeared that in the final report, some of the investigating officer’s views had been simply deleted with no obvious explanation for why. The EAT concluded that advice given by HR to the investigator should be limited to matters of law and procedure, whereas conversations of culpability should be reserved for the investigator alone.
These judgments stand as warnings that HR needs to be clear with any investigating officer that their findings must be their own. HR in turn must ensure they refrain from advising on issues of culpability or sanctions; anything that strays beyond questions of law and procedure is likely to be inappropriate.
The cases are also a salutary reminder that drafts of decisions will usually be disclosable in subsequent litigation (unless of course legal professional privilege applies), and so employers should be able to justify any substantial differences between drafts. 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. Bear in mind that if HR provides separate advice on the content of the draft decision, that HR advice will still usually be disclosable in subsequent litigation (even if copied to a lawyer).
Our team has extensive experience advising on the conduct of investigations, please see our Investigations Brochure for further information.
If you require further information about anything covered in this blog, please contact Emily Part, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, May 2019