Disciplinary procedures: the role of HR during investigations

The Employment Appeal Tribunal in Ramphal v Department for Transport has confirmed that there are limitations to the guidance that an employer’s Human Resources department should provide during an investigation into misconduct.

The facts

The employee, an Aviation Security Compliance Inspector, was investigated for possible misconduct relating to his expenses and use of hire cars. The investigating officer had not previously acted in disciplinary proceedings and, as a result, consulted the respondent’s Human Resources (HR) department for guidance as he was preparing his report and making his decisions.

The investigating officer’s first draft report was favourable towards the employee. It included findings that the misuse was not deliberate and that explanations provided by the employee for expenditure were “consistent” and “plausible”. However, after taking advice from HR, the report changed significantly.

Although there was little documented evidence of what HR had said to the investigating officer, it was accepted by the Employment Appeal Tribunal (EAT) that advice from HR went beyond advice on procedure. HR’s advice extended to questioning the employee’s credibility and the reasonableness of him using his corporate credit card in certain situations.

As a consequence of discussions with HR, the investigating officer removed the favourable references in the original draft report and added new findings to the report to suggest that the employee knowingly misused the corporate credit card and hire cars on a regular basis. The report shifted from an initial finding by the investigating officer that the employee was guilty of misconduct with a recommendation from him of a final written warning, to a finding of gross misconduct with a recommendation for dismissal.

The decision

The EAT held that the tribunal’s original finding of a fair dismissal could not stand and that the case should be remitted back to the tribunal to determine whether the dismissal was fair in light of the EAT’s remarks about HR’s apparent influence in the disciplinary process.

The EAT confirmed that an investigating officer is entitled to ask for advice from their HR department. However, that advice should be limited to matters of law and procedure and to ensuring that all necessary matters have been addressed. It is not open for HR to advise on whether the finding should be one of misconduct or gross misconduct (unless the advice relates only to consistency) or to improperly influence a decision in this way.

Comment

HR’s involvement in investigation and disciplinary procedures can be important and therefore this case should not be taken as discouraging their input altogether. Instead, the case serves as a useful warning for HR professionals giving advice to investigating or disciplining officers not to stray too far into conducting the investigation and influencing the outcome themselves. HR’s role in such situations should be limited to providing advice on law and procedures only as, ultimately, guidance which falls outside these parameters could result in an unfair dismissal.

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