In a nutshell
What is it all about? It's common practice for managers involved in the discipline of employees to seek advice from their HR colleagues. Often, dismissing managers will not have a great deal of experience in disciplining staff and will want to ensure that they have reached the right conclusion for the right reasons. However, there may be situations where the advice from HR strays from matters of law and procedure into the realms of credibility and culpability of the employee facing discipline. This can impact on the fairness of the dismissal.
Why should you care? In circumstances where the advice from HR strays beyond matters of law, procedure and the appropriateness of sanctions there may be scope for employees to argue that the dismissal was unfair in this regard.
What do you need to know? The decision making process should be transparent and as such there is an expectation that the dismissing officer should make his decision without having been lobbied by other parties to decide in a particular way. The roles of the dismissing officer and HR should be clear.
Get in touch: If you would like to speak to someone about the issues raised, please contact Ewan Stafford or find out more on our Employment Law page.
In detail – Ramphal v Department of Transport
Mr Ramphal (the Claimant) was employed by the Department of Transport (the Respondent) as an Aviation Security Compliance Inspector.
The Respondent launched an investigation into possible misconduct by the Claimant. The Respondent was concerned about the Claimant’s expenses and use of hire cars.
A manager was appointed to conduct the investigation and to act as the disciplinary officer. The officer appointed was inexperienced in disciplinary proceedings. The disciplinary officer therefore sought advice from the Respondent’s Human Resources Department. This advice related to the content of his investigation report.
The advice he was given was not limited to matters of law and procedure. The advice extended to issues of the Claimant’s credibility and level of culpability.
Initially, the disciplinary officer found that the Claimant’s actions were not deliberate. Furthermore, there was no compelling evidence that the Claimant’s actions were deliberate and also the explanations given were “plausible”. The disciplinary officer concluded that the Claimant was “guilty of misconduct rather than gross misconduct and that he should be given a final written warning as to his future conduct”.
On taking advice from the HR Department, the disciplinary officer’s position changed to become more critical of the Claimant. Favourable findings were removed. Having previously recommended a final written warning the disciplinary officer duly concluded, after taking advice from HR, that:
“Having given careful consideration to all the facts of the case, I am minded to conclude that, on the balance of probability, the Claimant is guilty of gross misconduct in respect of both misuse of the corporation card and the misuse of hire cars by the Respondent. My recommendation is that he should be dismissed from his post.”
On appeal to the EAT, the Employment Judge was critical of the way the Respondent had acted. In giving his verdict he usefully gave the guidance that: “An employee facing disciplinary charges and a dismissal procedure is entitled to assume that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings that he should make as to culpability ... and also given notice of representations made by others to the dismissing officer that go beyond legal advice and advice on matter of process and procedure.”
This case sets out useful boundaries for HR advisers who can often be put in a difficult position where they are asked to give advice on not only practice and procedure but these substantive decisions.
This case is authority to the proposition that HR advisers be careful when considering whether to comment upon the proposed disciplinary sanction as ultimately the decision should be that of the disciplining officer. Should the lines become blurred this may affect the fairness of the decision to dismiss.
Further, each case will be dependent upon its own circumstances and the level of involvement sought. It is worth noting that this case was found a particular way because it appeared that there were numerous draft decisions/investigation notes produced which were heavily amended by the HR Department.
Get in touch
If you would like to speak to someone about the issues raised, please get in touch.