Disciplinary investigations unduly influenced by HR advisers can lead to unfair dismissal findings, as a recent appeal hearing demonstrated. Michael Shroot examines the implications for employers and HR professionals.
The risks of not taking legal advice
A high profile Employment Appeal Tribunal highlights serious risks for employers and HR professionals who take part in disciplinary proceedings without specialist advice from employment lawyers.
The case of Ramphal v Department for Transport illustrates why it is crucial for both HR teams and managers who investigate and dismiss employees to be expertly advised on their specific duties in investigating misconduct and applying appropriate sanctions.
The case in a nutshell
Mr Ramphal had been employed by the Department for Transport and was entitled to receive subsistence allowances, but was investigated following concerns of excessive use of petrol and using the company car for personal reasons.
The investigating manager decided that Mr Ramphal was guilty of misconduct, but not gross misconduct, and that he should receive a final written warning. However, substantial and sustained intervention by the HR team meant subsequent drafts became increasingly critical of Mr Ramphal. The evaluation of culpability then escalated from misconduct to gross misconduct, and he was dismissed.
Mr Ramphal brought an unfair dismissal claim against his employer. The Employment Tribunal found the dismissal was fair, but the Employment Appeal Tribunal ruled that HR advice had prejudiced the initial investigation to such an extent that Mr Ramphal’s dismissal was potentially unfair. The case will now be re-heard by the Employment Tribunal.
Lessons to be learned from the appeal hearing
The decision of the Employment Appeal Tribunal emphasises that a HR adviser’s role in a disciplinary process is restricted to helping the investigating manager with matters of law, procedure and process, but great care should be taken to avoid straying into areas of culpability or appropriate sanction.
An employee in a disciplinary hearing is entitled to expect the decision will be taken by the investigating manager, without influence on questions of culpability from other individuals, including HR teams.
Having said this, the ruling does not mean that HR advisers shouldn’t contribute to any disciplinary investigation or its outcome. What must be kept at the forefront of the HR professional’s mind is the scope of their involvement.
Why HR teams should work in tandem with employment lawyers
Operating effectively, HR professionals can substantially lower the risk of misguided disciplinary decisions being taken.
The key learning point from the Ramphal case is that investigating managers must take full ownership of their findings, while HR professionals should adopt a neutral stance on disciplinary action in order to avoid the risk of an unfair dismissal claim.
Specialist solicitors can add value in a variety of technical areas, not least assisting businesses and HR advisers in avoiding a costly and reputational damaging entanglement in an employment tribunal hearing.
For further advice on HR input into disciplinary matters, call Michael Shroot on 0161 761 8087, or email him at Michael.Shroot@whnsolicitors.co.uk
