HR involvement in disciplinary decisions does not necessarily render a dismissal unfair....
HR's Interference In Disciplinary Sanction Made Decision Unfair
The role of human resources (“HR”) during a disciplinary process should not extend beyond providing advice on the law, the procedure followed and ensuring all matters have been dealt with clearly and consistently the EAT has confirmed in Ramphal v Department of Transport.
Mr Ramphal was a security compliance officer and his role meant that he was required to spend a significant period of time travelling, as his territory stretched between Cornwall and Scotland. This meant that he paid various expenses including for hire cars and fuel on his company credit card.
Mr Ramphal’s expenses were audited and it was found that further investigation into a number of suspicious items of expenditure was required. Mr Goodchild (Head of Land Security Compliance) was appointed to investigate matters in June 2012 and found that there was a case to answer. Mr Ramphal was invited to a disciplinary hearing which was also to be carried out by Mr Goodchild.
In Mr Goodchild’s first draft of the disciplinary outcome letter, it was decided that while there were issues with the Mr Ramphal’s expenses, there were a number of favourable findings towards him including that the misuse was not deliberate, there was no compelling evidence that his actions were deliberate and the explanations provided were plausible and consistent. The outcome of that initial draft was that Mr Ramphal was guilty of misconduct and that he should be issued with a final warning.
Mr Goodchild then had a number of meetings and engaged in lengthy correspondence across a period of six months with his HR department. A number of amended drafts of the disciplinary outcome letter were produced. The final draft removed the favourable findings towards Mr Ramphal and now recommended that he should be dismissed for gross misconduct.
The Employment Appeal Tribunal found that there was a clear and disturbing change in the outcome of the disciplinary process after the intervention by HR and that it was not for HR to advise the disciplinary officer about his decision on culpability and the appropriate level of sanction. Any advice on sanction should be clearly limited to ensuring consistency of treatment and the shift in approach here went beyond that, influencing the decision on culpability itself.
Comment
This decision is an important reminder for HR professionals to ensure that they do not overstep the boundaries of their role when assisting with disciplinary processes. The outcome of any disciplinary process is a decision that must be reached by the disciplinary officer alone. Whilst HR need to ensure consistency of treatment across an organisation for similar offences, which might impact on sanction, the ultimate decision must be that of the disciplining officer who must be able to justify to HR why they want to apply a different sanction to others.
It is also a useful reminder that during any legal proceedings, not only the final version of a document must be disclosed, but also any previous versions of that document. So if there a large shift in outcome, this will need to be explained. If there is no new evidence or something to justify that change, such as consistency, then the decision may well be unfair. This highlights the importance of legal privilege and taking early legal advice from a solicitor if privilege is to be available.