In Ramphal v Department for Transport (EAT – 2015), the EAT has provided guidance on the appropriate level of HR involvement in disciplinary proceedings.

The case concerns an employee who was dismissed for gross misconduct relating to his expenses and use of hire cars. It was clear from evidence given at the employment tribunal that the disciplinary officer had initially decided that the claimant was guilty of misconduct and to give a final warning but, having received advice from HR, had changed his mind and dismissed for gross misconduct. The employment judge concluded that the disciplinary officer was entitled to change his mind having received HR advice, but went on to find that the dismissal was unfair for other procedural reasons. The employment judge awarded no compensation on the basis that there was a 100 per cent chance that the claimant would have been dismissed anyway, and because the claimant was 100 per cent to blame for his own dismissal.

The EAT confirmed that it was appropriate for HR to provide advice on matters of law and procedure. HR was also entitled to make sure that all relevant issues had been addressed before the decision to dismiss was made. However, the EAT indicated that HR will be crossing a red line where it lobbies the disciplinary or investigating officer to change their conclusions about an employee’s credibility and culpability, and/or the disciplinary sanction that should be applied. The EAT concluded that:

  • An employee facing disciplinary charges and a dismissal procedure is entitled to assume that the decision will be taken by the disciplinary officer, without that person having been lobbied about the findings the disciplinary officer should make on an employee’s culpability and credibility; and
  • An employee should be given notice of representations made by HR (or another third party) to the disciplinary officer that go beyond legal advice, and advice on matters of process and procedure.

As it could be inferred from the facts that the disciplinary officer had been improperly influenced by HR to change his mind and dismiss the employee, the EAT overturned the decision that the dismissal was fair. However, the EAT declined to make a finding itself that the dismissal was unfair. Instead, the case was sent back to the same employment judge to make findings on that issue again, having heard further evidence on whether the influence of HR was improper, and if so, whether it had a material effect on the ultimate decision of the disciplinary officer regarding culpability and sanction.

What this means for HR

This case is a helpful reminder that the level of HR involvement is an important factor in the overall fairness of a dismissal. When litigation reaches the disclosure stage, the level of HR involvement will likely be obvious once emails between HR and the disciplinary officer, draft investigation reports and/or draft dismissal letters are disclosed to the employee. Where HR is concerned that a disciplinary officer is making a manifestly wrong decision, this case highlights that such HR interventions will be subject to close scrutiny by the employment tribunal.

The finding that an employee should be given notice of representations made by HR (or another third party) that go beyond legal advice, and advice on matters of process and procedure, is troubling as it will rarely be clear where the line is, and whether it has been crossed. HR need to be extremely careful when giving legal advice, because that advice will not be protected by legal privilege and will be disclosable in proceedings.