September 30, 2015

Warning to HR Against Over Involvement in Disciplinary Investigations

In Ramphal v Department for Transport UKEAT/0352/14, the Employment Appeal Tribunal (EAT) considered whether heavy involvement by HR in a disciplinary investigation rendered a subsequent dismissal unfair.

Mr Ramphal was employed as an Aviation Security Compliance Inspector by the Department for Transport (DFT). He became the subject of an investigation regarding his expenses. The DFT appointed Mr Goodchild, a manager, to conduct the investigation and disciplinary process. Mr Goodchild had no previous experience in disciplinary matters and sought advice from HR. The report he initially drew up included several points in Mr Ramphal's favour and recommended a finding of misconduct and the sanction of a final written warning. However, after further consultation with HR, the report become much more critical of Mr Ramphal and recommended a finding of gross misconduct and a sanction of summary dismissal.

The EAT confirmed that the findings of an investigating officer must be their own. To avoid compromising the fairness of an investigation, HR should not get overly involved in disciplinary investigation and, in particular, it should not advise on matters of culpability or sanctions (except to address issues of consistency). The EAT found here that the changes to Mr Goodchild’s report were so striking that they gave rise to an inference of improper influence by HR. The case was remitted to the Tribunal to reconsider its decision.

This is a warning to employers to ensure that HR has limited influence over the decision-making process where a third party is responsible for investigating and making the decision. It is also a reminder that previous drafts of an investigation report are disclosable in proceedings unless they are legally privileged (i.e., unless they have been prepared for the purposes of taking legal advice).

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