No Credit to HR

During the course of any employment process it can be helpful to obtain guidance from Human Resources (HR) to ensure that those processes are being followed correctly. However, care needs to be taken to ensure that, particularly in the case of disciplinary matters, HR’s influence on the decision making process does not overstep the mark and cause problems with establishing who the decision maker actually is.

In Ramphal v Department for Transport (DFT), Mr Ramphal was employed as an Aviation Security Compliance Officer. He was given a Company credit card, which was not to be used for personal expenditure. Mr Goodchild, a Manager of the DFT, was appointed to investigate allegations of Mr Ramphal fraudulently using the Company credit card for personal use. Following the investigation, it was decided that there was a case for Mr Ramphal to answer. He was invited to a disciplinary hearing to answer allegations of gross misconduct. Mr Goodchild also conducted the disciplinary hearing. Mr Goodchild initially came to the view that while the allegations were proven, Mr Ramphal had provided a plausible explanation and that there was insufficient evidence to show that this was done intentionally. He drafted an outcome report, issuing a final written warning, which was sent to HR for guidance. After this, Mr Goodchild prepared a further report which removed the findings favourable to Mr Ramphal and replaced them with a decision to dismiss on the basis that his personal use of the card was intentional. Mr Ramphal issued proceedings, claiming that he had been unfairly dismissed, primarily on the ground that there had been an unwarranted intrusion into the process from HR which rendered the decision to dismiss unfair.

The Employment Tribunal (ET) found that the dismissal was fair, stating that despite there having been a change of heart from Mr Goodchild regarding his decision, the process was not rendered unfair by the involvement of HR.

On appeal, the Employment Appeal Tribunal (EAT) decided that the ET had not properly considered what caused Mr Goodchild to take a more critical view of Mr Ramphal’s conduct if it were not the influence of advice from HR. The EAT were of the view that HR’s representations went beyond giving advice on procedure and clarification and appeared to have led to the reshaping of his views, given the dramatic changes of opinion from Mr Goodchild. These changes were “so striking that they give rise to an inference of improper influence”.

The EAT went on to give some guidance on the limits to HR’s role in disciplinary proceedings, highlighting that any such guidance provided by them should be limited to questions of law, procedure and process and to avoid straying into areas of culpability.

While this decision does provide some useful and important guidance regarding HR’s role in disciplinary matters, it is also a reminder that a third party’s involvement in the decision making process should be very limited. It is essential that questions of guilt or innocence are decided by the individual appointed to make the decision and not anyone else.  A failure to do this is highly likely to render the process and decision unfair.

Director of Legal Services

James Tamm

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