Safia Tharoo, Barrister, 42 Bedford Row
When an employer is investigating an allegation of misconduct, it is usual practice – especially in larger organisations – for management to seek advice and support from their Human Resources department. But the Employment Appeal Tribunal have just issued a judgment (Ramphal v Department of Transport: UKEAT/0352/14) that acts as a cautionary tale for those who might become too reliant on such support.
Mr Ramphal worked as an Aviation Security Compliance Officer. He spent a significant amount of time on the road, for which he was entitled to claim car hire and subsistence. He was issued with a credit card for his expenses. Mr Ramphal was selected at random for an audit of his transport and subsistence claims and a number of items were flagged up. There were some items which Mr Ramphal accepted were inappropriate claims and alleged that these were mistakes. He repaid these sums. The key concern seemed to be around excessive petrol use.
As a result, the Department of Transport appointed a manager, Mr Goodchild, to carry out an investigation and disciplinary hearing. He had not conducted such an investigation before, and he therefore met with personnel from the HR department to familiarise himself with process and procedure. A disciplinary hearing took place, and Mr Goodchild produced a first draft of his report. Although the explanations provided were not sufficient to deal with all concerns, the report also included some favourable comments; he found that Mr Ramphal’s misuse of his credit card was not deliberate and that the explanations given by him for his petrol consumption were plausible. Mr Goodchild recommended a finding of misconduct, with a sanction of a final written warning.
When this draft report was sent to HR, they noted that Mr Ramphal’s work and personal credit cards were different colours and that this should be taken into account when deciding whether he could have used the wrong card to purchase items. They also observed that the excuse of using the ‘wrong card’ had been given for three separate transactions and that whilst a single error might be understandable, three was at best careless. As a result of these and other comments, Mr Goodchild made wholesale changes to his report; more favourable comments mentioned above were deleted and instead the report was critical of the ‘sheer number of instances’ of misuse of the credit card over a short period, concluding that the card must have knowingly been misused. The recommendation was changed to dismissal for gross misconduct.
Thereafter, Mr Goodchild had a further disciplinary hearing with Mr Ramphal, who again put forward his explanations for the items of concern. As a result, Mr Goodchild revised his report again – this time to say that he was unable to conclude that the misuse of the credit card or hire car was deliberate, and recommending a final written warning. When this report was sent to HR they came back with further comments, which resulted in the report being changed again to recommend dismissal for gross misconduct. This was the version that was finally sent to Mr Ramphal and he was dismissed.
Mr Ramphal brought a claim for unfair dismissal in the employment tribunal, alleging that improper influence had been brought to bear on Mr Goodchild by HR. This claim failed, but when he appealed to the Employment Appeal Tribunal (EAT), he was successful in showing that there was a complete change in view from Mr Goodchild’s original position to his final position as a result of his interactions with HR.
The EAT made clear that the report of an Investigating Officer for a disciplinary enquiry must be the product of the case investigator alone; HR clearly involved themselves in issues of culpability, which should have been reserved for Mr Goodchild. Whilst it was appropriate for HR to advise on issues relating to procedure and law, Mr Goodchild’s interactions with HR clearly went beyond this. The changes were so striking that they give rise to an inference of improper influence and this had not been fully considered by the Employment Tribunal. The case was therefore sent back to the tribunal to reconsider the decision in light of this point.
This case is a clear warning for any organisation that whilst HR personnel can, and should, advise an investigating officer or disciplinary officer on issues relating to the procedure to be followed, they should be wary of getting involved in the factual circumstances of the decision itself, particularly if their views are different to those of the officer. It is for the decision maker to make their own conclusions on the strength of the evidence before them and the culpability or otherwise of the employee, and HR should not try and influence their decision.