This article was written by Anne-Marie Sugrue, Associate
The EAT has confirmed that if Human Resource's involvement in a disciplinary investigation goes beyond simply providing advice as to process, there is a danger that the fairness of the investigation process could be compromised. This could result in a successful claim for unfair dismissal.
In Ramphal v Department for Transport, the EAT found that an employee had been unfairly dismissed because the disciplinary investigation that led to his dismissal had been significantly influenced by Human Resources ("HR”). The report of the investigating officer had originally found simple misconduct, and recommended a written warning, but the final report, after suggested changes by HR, found gross misconduct, and resulted in a summary dismissal.
The EAT found that previous case law, Chhabra v West London Mental Health NHS Trust, had established an implied term that the investigation report must be a product of the investigating officer’s own investigations. In Ramphal, the EAT gave the following guidance on the role of HR to avoid breaching this implied term:
- an Investigating Officer is entitled to call for advice from HR; but HR must be very careful to limit advice essentially to questions of law, procedure and process;
- HR must avoid straying into areas of culpability, let alone advising on what was the appropriate sanction;
- however, HR may advise as to consistency of sanction.
What does this mean for employers?
HR have a vital role in disciplinary investigations in advising investigating officers (who may be new to the task), on matters such as how employees have been treated in similar circumstances, as well as advising on procedural issues. This advice may quite properly influence the investigator’s recommendations. However in light of this decision HR must now walk a tightrope to avoid breaching the implied term, which dictated the outcome of this case.
What should employers and HR do differently? First, take note that in this case, the striking differences between the first and final drafts of the report led the EAT to infer that HR had exerted improper influence, even though the investigating officer was adamant that the eventual findings were his own. The employer appears to have been condemned by the paper trail - despite the decision maker's evidence that he had not been unduly influenced. In cases where the stakes for employers are high, such as where dismissal appears a real possibility or where there are commercial or reputational issues, employers may be well advised to involve their legal advisers and HR at the earliest stage. This will ensure draft reports have HR input from the beginning and where drafts are produced in the context of obtaining legal advice, legal professional privilege may even apply so that they are not disclosable in subsequent legal proceedings.
Employers should also take note that, in light of the EAT’s finding in Chhabra and now Ramphal of an implied term concerning HR's role in disciplinary investigations, evidence of improper HR influence could also form the basis of a breach of contract and potentially constructive unfair dismissal claim. This could in some cases result in a claim against the employer and the loss of contractual protections for the employer such as post-termination restrictions – even where the employee has in fact been guilty of the wrongdoing under investigation.