The recent decision in Ramphal v Department for Transport highlights the need for caution regarding HR's input into disciplinary decisions. In this case, HR's influence over the disciplinary manager's decision led to the Tribunal's "fair dismissal" decision being overturned by the EAT.

The facts

In June 2012 Mr Ramphal was investigated regarding allegations of excessive petrol use and using the company car for personal reasons.  The employer appointed a manager, Mr Goodchild, as the investigatory and disciplinary officer. Mr Goodchild consulted with the HR department regarding the disciplinary procedure and process.  Following a disciplinary hearing he submitted a first draft of his report to HR. The report criticised aspects of Mr Ramphal's conduct, but also made several favourable comments, including that his misuse had not been deliberate and that his explanations were "plausible" and "consistent".  His recommendation was for a finding of misconduct, with the sanction of a final warning.

However, following suggestions, redrafts and amendments from HR, Mr Goodchild's report changed significantly.  Favourable comments were removed, criticisms added, and the overall finding was changed to gross negligence. The eventual recommendation for sanction was changed to summary dismissal  for gross misconduct.

Mr Ramphal was dismissed, and brought a claim for unfair dismissal.

At the first instance, the Tribunal held that the decision had ultimately been made by Mr Goodchild who did not appear to have been "much influenced" by the HR department.

On appeal, however, the EAT set aside the decision and remitted the case back to the Tribunal. The EAT held that the extreme nature of the changes to the report suggested that Mr Goodchild's decision had been improperly influenced by HR.  The Tribunal was required to do give clear reasons for showing that no such improper influence had taken place.

Practical guidance

The case confirms the earlier decision in Chhabra v West London Mental Health Trust, that while HR may assist with a disciplinary report, the report must be truly the product of the officer's own investigations and decision making. But in practice, HR will often be heavily involved in the production of a disciplinary report – and even a disciplinary decision - due to their greater experience and expertise. To what extent can HR safely be involved?

  • HR can provide guidance on how to run a disciplinary process; the types of sanction available; and what issues the disciplinary manager should be considering. 
  • It may be inappropriate to advise the disciplinary/investigation manager which documents he should consider and which witnesses he should speak to at the outset. However, if the disciplinary manager has clearly failed to investigate certain issues fully, HR can point this out and make suggestions for further investigations.
  • HR should not be seen to influence the manager's decision on culpability or sanction.  Suggesting a more severe sanction should therefore be avoided. The limited exception to this is HR's responsibility to ensure consistency of decision making.  HR can therefore provide guidance on the sanctions issued in similar situations, which may influence the outcome.

But what should HR do if the decision of an experienced manager is clearly wrongly decided or too lenient?  Will the company then be forced to stick to this decision? Based on this case, the answer may be "yes". Therefore, it would be highly advisable for HR to discuss the proposed findings verbally with the manager before anything is committed to writing, to ensure that the manager is on the right lines. This is particularly the case where the disciplinary manager is inexperienced or HR has reason for concern about his capability.  Written communications (other than communications with lawyers) should always be drafted with the awareness that they will need to be disclosed in any future litigation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.