When HR gets too involved in the disciplinary process

If you’re considering disciplining an erring employee, you’ll doubtless want to make sure that you get everything right, if only to avoid mistakes coming back to haunt you later. If you’re not an HR professional, you’d be considered prudent for taking advice or guidance from HR, but how far should their involvement go in the disciplinary process itself?

The case of Ramphal v Department for Transport shed some light on the degree to which HR involvement would be considered inappropriate.

Ramphal was subject to a formal disciplinary investigation about allegations of misconduct relating to over-claiming on petrol expenses and use of hire cars. The investigation into his actions was handed to a Department for Transport manager, who was unfamiliar with – and had no experience of – disciplinary investigations.

The manager found that there was no real evidence to show that Ramphal’s misuse was deliberate and the explanations given regarding petrol expenditure were ‘plausible’ and ‘persuasive’. He could not therefore go so far as to conclude that Ramphal had been dishonest. His draft report contained the recommendation that the best way to deal with the situation was to give Ramphal a final written warning for misconduct.

Subsequent to the drafting of his report, he had extensive discussions with HR, who made several recommendations regarding Ramphal’s culpability and the sanction that was felt to be appropriate. The Department for Transport’s internal guidance said that these decisions were for the disciplinary manager alone to decide.

Six months later, the final version of the report had been produced, favourable conclusions having been changed for critical ones, with the conclusion that Ramphal had been dishonest, that he was guilty of gross misconduct and that he should be dismissed.

Ramphal took his employer to an Employment Tribunal claiming unfair dismissal. The Tribunal agreed with the employer, but Ramphal then appealed the decision, arguing that there was no sufficient examination of why the investigating officer had changed his mind so completely between the draft and final versions of the report.

In its judgment, the Employment Appeal Tribunal said that the Tribunal judge had not given a clear or cogent reason why he had accepted that there had been no undue influence by HR. While it was not wrong for HR departments to offer advice and guidance if requested, the final decision was for the disciplining officer to take.

The general principle is that the advice given by HR should be restricted to questions of law, procedure and process. HR should not concern itself with questions of culpability or the sanction that should be applied.

In Ramphal’s case, the evidence was clear that HR exceeded its remit and had lobbied the manager into altering the outcome of the investigation process. The Employment Appeal Tribunal felt that this had called the fairness of the process into question.

The problem with the involvement of HR was that they had not heard Ramphal’s side of the story, only the report on the investigation. Neither had Ramphal the opportunity to rebut any of the input that HR had made into the final version of the report.

The fact that the decision to dismiss Ramphal was not the manager’s alone meant that the dismissal was likely to be found unfair.

What this means for employers

HR should always have the ability to challenge a report produced by a disciplinary officer, give advice on how far investigations can be taken and issue guidance on whether a proposed sanction is appropriate and consistent. However, the temptation to influence the decision of the disciplinary officer should be resisted; if in doubt, err on the side of caution. A statement could be issued by the employer, reminding HR of the parameters of their role in any investigation.

Tips for employers:

If HR needs to give advice on procedure or law, it should be done in writing. In the case of a problem or challenge to the outcome of the disciplinary process, HR’s input into the investigation can be proved.

It should be remembered that correspondence to and from the HR Department is not subject to legal privilege and therefore can be requested by investigating bodies such as the Employment Tribunal service. Any redactions will be viewed as significant and may lead the Tribunal to draw inferences – and not always the right ones. Employers have two options – either ensure that all correspondence is sent via lawyers to preserve privilege or to ensure that documents are kept ‘clean’ and free of any content that may prove awkward for the employer during any investigation.

It is important to bear in mind that disclosure will extend to draft versions of any reports that are created.

If HR picks up on areas which the investigating manager has not raised or gone into, this can be brought to the manager’s attention but these areas should then be raised with the employee so that they have a right of reply. Once this has been done, a final decision can be contemplated.

When an investigating manager is selected, care should be taken that they are familiar with their duties and that they are aware of the relevant legal considerations. They should also be made aware of the applicable sanctions for different levels of culpability.

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