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A challenge: does your HR team make inappropriate changes to investigatory reports or disciplinary decisions?

A challenge: does your HR team make inappropriate changes to investigatory reports or disciplinary decisions?

Managers asked to conduct disciplinary investigations and make disciplinary decisions frequently call on HR for expert advice and support. The recent case of Ramphal v Department For Transport [2015] considers the extent of the guidance that can properly be offered without undermining the fairness of the process and provides important practical guidance for HR teams. The take aways for HR are:

Do
  • Only appoint managers who are sufficiently senior to understand the full organisation context and empowered to take appropriately robust disciplinarily decisions.

  • Limit HR advice to matters of law and procedure – remembering that such advice is likely to have to be disclosed in any litigation.

  • Ensure comments on reports or decisions are limited to presentational matters – i.e. ensuring that all necessary matters have been addressed and the decision is clear.  

  • Remember that advice on sanctions from HR is not only permitted but is essential to ensure consistency of decision making.

  • Ensure that the decision maker understands that the decision is theirs and theirs alone, and that they may be cross examined on this issue.

  • Consider amending disciplinary policies if, in practice, other stakeholders are involved in decision making in your organisation.
Don’t
  • Exert improper influence on the dismissing officer or allow the business to do so.

  • Make substantive amendments investigatory reports or disciplinary decisions.

  • Appoint junior managers to make difficult decisions.

  • Forget that advice from legal is likely to attract legal professional privilege whereas advice from HR will not.

  • Depart from your disciplinary policy without good reason.

  • Be afraid to manage the disciplinary process; HR still have a legitimate role to play.
Facts

Mr. Ramphal was summarily dismissed for a number of expenses irregularities following an audit. An investigation and disciplinary process was carried out by an independent manager.   This manager was inexperienced and sought guidance from the human resources department on questions of procedure and levels of sanctions. His original draft report contained a number of favourable findings and concluded that Mr. Ramphal was guilty of misconduct rather than gross misconduct and should receive a final written warning.

Following intervention from the HR department, including two face to face meetings and numerous versions of his report, eventually the decision of the dismissing manager was changed. No new evidence came to light and there was an inference that the HR department had sough to influence the outcome of the disciplinary process. The final decision letter stated that Mr. Ramphal was guilty of gross misconduct and would be dismissed.

Whilst the dismissing manager had been adamant in cross examination that the decision to dismiss had been his and his alone, the Employment Appeal Tribunal held that the dismissal could not be fair. The case was remitted back to the Employment Tribunal to consider exactly what had caused the dismissing manager’s change of heart.

The Law

The ACAS Guide and Code of Practice on Discipline and Grievances at Work have little to say about the appropriate role of HR during disciplinary investigations and decision making.

However, the question was addressed by the Supreme Court in the context of a contractual disciplinary procedure in Chhabra v West London Mental Health NHS Trust [2013]. Chhabra established that whilst there is no impropriety in a dismissing or investigating officer seeking advice from an employer’s human resource department, such advice must be limited to matters of law and procedure and level of appropriate sanctions with a view to achieving consistency. Where the procedure called for a report to be prepared by a named manager it would be a breach of contract for another manager to alter the report.

Comment

It is common for investigatory reports and disciplinary decisions to be reviewed by HR and Legal before they are issued. Ramphal is an important reminder of the limits of the review that should be undertaken.

Whilst this case concerned interference from HR, the same principles apply to intervention from the wider business. There can be often be a temptation for dismissing officers to consult with senior management before dismissing and following Chhabra this practice should be avoided. This may also taint the appeals process if the senior manager is required to play a part in any appeal.

If organisations want HR or other stakeholders to have a role in the disciplinary process then consider formally changing your disciplinary policy so the policy is transparent. Many organisations adopt an “off the shelf” disciplinary procedure giving little thought to how it will operate in practice. It is possible to adopt procedures that are both fair but also pragmatic.
For example, in this case, had the process allowed HR to comment on the draft decision and given the employee a right to make further representations, the outcome is likely to have been different.

Claimant lawyers will be alive to inappropriate intervention and it is important to remember that advice from HR is unlikely to attract legal professional privilege. In recent cases we have seen dismissing officers cross examined on the level of involvement from HR in their decision.