HR’s undue influence over disciplinary investigation report led to unfair dismissal

Ramphal v Department for Transport | EAT | September 2015

This EAT case explains how HR’s unjustified interference with the conclusions of a disciplinary investigation can lead to an unfair dismissal. HR’s involvement should be limited to advising the investigating officer on matters of law and procedure; HR should not get involved in findings of fact or issues of culpability. HR managers will see that in this case HR’s advice about alterations made to an investigator’s report went beyond points of clarification but strayed into findings of fact and culpability. This made the report no longer the independent work of the investigating officer and this was unfair.

The claimant worked as an Aviation Security Compliance Inspector. He was seldom in the office as his work took him to many locations across the country. He was dismissed for gross misconduct in relation to allegations about his use of a corporate credit card and hire cars whilst working away from his office.

Prior to his dismissal, the respondent appointed a manager, Mr Goodchild, to conduct a disciplinary investigation and act as dismissing officer, if necessary. He was inexperienced in disciplinary proceedings and during the preparation of his investigatory report Mr Goodchild obtained advice from HR.

Mr Goodchild’s first draft report contained a number of findings favourable to the claimant including the conclusion that the claimant’s misuse of the corporate credit card was not deliberate and that he had given “plausible” explanations about his expenses. Mr Goodchild concluded that the claimant had been guilty of misconduct rather than gross misconduct and he should be given a final written warning.

However, by the time of the disciplinary hearing, Mr Goodchild’s final report had been significantly altered by him. All the favourable findings had been changed and his conclusion was now that the claimant was guilty of gross misconduct with the recommendation that he be dismissed which is what happened.

At the subsequent employment tribunal hearing the claimant argued that his dismissal was unfair because of HR’s undue influence over Mr Goodchild’s findings of fact and conclusions. The claimant relied on the various drafts of Mr Goodchild’s report that grew more critical of him with each version. The respondent argued that the advice and help provided by HR to Mr Goodchild was appropriate especially given he had no previous experience of handling a disciplinary case. The employment judge agreed and held that Mr Goodchild had been fairly dismissed and was therefore not entitled to any compensation for unfair dismissal.

The claimant appealed to the EAT and argued that his dismissal was unfair because HR had effectively “inappropriately lobbied” Mr Goodchild to change his views about the claimant’s conduct and his explanations. The claimant said there had been no new evidence between Mr Goodchild’s first report and his final version that could justify such a radical change in his conclusions and that the employment tribunal judge had not given sufficient consideration as to what had led to Mr Goodchild’s change of heart.

The EAT agreed with the claimant and set aside the tribunal’s finding of unfair dismissal and remitted the case back to the same employment tribunal judge to reconsider the case again taking into account the following key findings of the EAT:

• The EAT said it was “disturbing to note the dramatic change in Mr Goodchild’s approach after intervention by HR.”
• “A number of proposed findings favourable to the claimant or exculpatory as to his conduct are replaced by critical findings. A proposed finding of misconduct is replaced by a finding of gross misconduct and a proposal to impose a final written warning is replaced by a proposal, and then a decision, to summarily dismiss the claimant” after Mr Goodchild had wrongly been advised by HR that dishonesty was not a necessary ingredient in relation to an allegation of theft or fraud.
• There was no new evidence that justified the above changes; the only inference that could reasonably be made was they came about only from HR’s involvement. The EAT said that if the employment judge disagreed with this he should have given clear and cogent reasons why HR had not engaged in improper influence over Mr Goodchild’s decision making responsibilities.
• The employment judge had not taken into account the decision of the Supreme Court in Chhabra v West London Mental Health NHS Trust [2014]. This case is authority that it is an implied term that the report of an investigating officer for a disciplinary enquiry must be the product of the case investigator especially when the investigator has the dual role of dismissing officer.
• The EAT stressed, “For a dismissal to be fair there has to a fair investigation and dismissal procedure. If the integrity of the final decision to dismiss has been influenced by persons outside the procedure it will be unfair, all the more so if the claimant has no knowledge of it.”
• Whilst an investigatory officer is entitled to ask HR for advice, HR must not do more than limit any advice essentially to questions of law, procedure and process and “avoid straying into areas of culpability, let alone advising on what was the appropriate sanction . . .”
• HR’s advice about possible sanctions should be limited to issues about consistency.
• HR must not “lobby” the investigatory officer (or if different the dismissing officer) for particular findings of fact to be reached or for a particular disciplinary outcome.

It is also of interest to note that the EAT was also critical of Mr Goodchild’s failure to number and date his draft reports as this made it difficult to identify what changes were made and when. These draft reports were properly disclosable as part of the tribunal disclosure exercise and the respondent’s attempts to avoid did not impress the EAT!