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Volume XI, Number 343

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Who drove change of disciplinary direction? – When HR’s advice goes too far

Do you ever think that your line managers are making such a hash of a grievance or disciplinary process that it would be easier to do it yourself?  Do you watch in horror as they stumble blindly but unerringly towards what is clearly the wrong decision?  Are you tempted to give them a nudge in the right direction?

Then read on before you snatch the reins from the manager’s hands, for all is not as simple as it seems.  The Employment Appeal Tribunal in Ramphal v. Department of Transport has this month put a very clear shot across the bows of any HR function considering intervention into such a process.

Mr Ramphal was accused of over-claiming in relation to his expenses.  Conduct of the investigation was given to a DoT Manager, Mr Goodchild, who had no prior experience of disciplinary investigations.  He did his best and produced for HR’s approval a report in which he concluded that there were just about tenable excuses for the expenses claims made, that he could not therefore get so far as finding dishonesty, and that Mr Ramphal should get a final warning as a result.  By the time Mr Ramphal saw the product of Mr Goodchild’s work, however, the report concluded that Mr Ramphal had been dishonest and that he should be dismissed (which he then was, by Mr Goodchild himself).  Weird.

The Tribunal concluded that Mr Ramphal had been fairly dismissed but he challenged this, claiming that there had been insufficient exploration of what had happened between the first draft and the final version to change Mr Goodchild’s mind so comprehensively.  What had HR’s input actually been?

Inadequate disclosure and over-vigorous redactions by the DoT left the EAT unclear on this and so Mr Ramphal’s appeal was upheld to some extent – not a finding of unfair dismissal but a remission back to Employment Tribunal to look into that question in more detail, and decide if it prejudiced the ultimate outcome.  In particular, was HR’s input of a purely procedural or legal nature (which is perfectly permissible), or did it get into issues of guilt and sanction as well?  Those were matters which the DoT’s internal procedures made clear were for Mr Goodchild to decide.  The problem is the obvious one – HR had not heard Mr Ramphal’s representations and should not be expressing views on them, and equally Mr Ramphal had not had the opportunity to rebut any additional arguments as to culpability which HR might have given Mr Goodchild.  If it becomes apparent back in the Tribunal that the dismissal decision was not Mr Goodchild’s alone, Mr Ramphal’s dismissal is likely to be found unfair.

Lessons for HR:-

  • As the Department found to its cost here, correspondence between the investigating manager and HR does not attract legal privilege and the Employment Tribunal will resist material redactions. Therefore either keep that correspondence clean, and/or send it via lawyers to preserve appropriate privilege.  In the same vein, remember that draft reports will still be disclosable even (especially) if the ultimate conclusions were very different.

  • Where there is procedural/legal advice to be given by HR, do it in writing. While this will be disclosable, that will not hurt if the advice is “straight”, i.e. not about the specific facts or merits or ideal outcomes of the case in question.  It may also reduce the scope for the adverse inferences reached by the EAT here as to the legitimacy of the input made;

  • Where HR spots points or questions or lines of enquiry which the manager did not, have him go back and raise these with the employee in another mini-meeting if necessary, so that both perspectives are heard before a final decision is seen to be made;

  • Ideally, set out the relevant legal considerations for the manager in advance. In Ramphal it is possible that Mr Goodchild changed his position because of entirely proper advice from HR as to the relevant burden of proof – i.e. not “beyond all reasonable doubt” as he appeared to believe at the outset, but the much lower threshold of “reasonable belief on the balance of probabilities”.  If Mr Goodchild had understood that at the beginning, perhaps this issue would have been avoided;

  • Consistency of response is important to the fairness of a dismissal, so it would do no harm for the manager to be told at the start about the sanctions usually applicable to different levels of culpability. Swapping intended penalties halfway through the process, on the other hand, will always look like the product of improper interference in the decision;

  • Last, under no circumstances expressly adopt (or if you must adopt, then at least respect) the Department of Transport’s HR Service Pledge – “we won’t make decisions for you, that’s your job, but we will be there for you”.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume V, Number 254
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
Partner

Following 10 years at a Magic Circle firm, David has been head of our London Labor & Employment Practice since 1994.

His expertise gained from over 30 years as a specialist employment law practitioner cover a wide variety of employment-related issues, including individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and...

+44 20 7655 1132
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