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Undue HR influence can jeopardise a fair dismissal

BY Paman Singh
Employment Law & HR
BG Purple

It’s an age old issue – how much influence can HR have in the disciplinary process?  In Ramphal v Department for Transport the Employment Appeals Tribunal has provided crucial guidance for those stuck in this predicament.

The case involved an investigation into an employee’s expense claims. The investigating officer, who had no experience of carrying out an investigation or conducting disciplinary proceedings, met with his HR department and sought to familiarise himself with the disciplinary procedure and the difference between various levels of misconduct and the penalties attached to these. Following this, he conducted an investigation into the matter. 

At the disciplinary hearing (where the investigating officer was also the disciplining manager – pro tip – this is a no no!) the employee was able to provide an explanation for the vast majority of the allegations levied against him. However there were a few outstanding expenses that couldn’t be accounted for. The employee claimed he had mistakenly used the employer’s credit card rather than his own and had subsequently paid these back. 

Initially, the investigating officer felt that the employee’s explanation was not fully convincing. In his investigative report he found that the misuse of the company credit card was unintentional, describing the explanations as “consistent” and “plausible” for the most part. Nonetheless, he felt that it was a case of misconduct and recommended a final written warning.   

Following an extensive period of communication between the investigating officer and HR, his findings changed to gross misconduct and summary dismissal. The amended report stated that the employee "knowingly misused the Corporate Card and hire cars on a regular basis" and any references to findings that were favourable to the employee were removed. 

The employee brought a claim for unfair dismissal which failed in the tribunal. However, on appeal, the EAT concluded that there was an implied contractual term that the investigation report should have been the work of the officer assigned to carry it out and not the HR department. HR’s role was to provide advice, to ensure all necessary matters had been addressed and to achieve clarity. However, the HR team should have avoided straying into the decision maker’s territory. Crucially, it was not for HR to determine wither the finding should be of simple misconduct or gross misconduct.

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