Local Government Employment Review: Investigation heavily influenced by HR may render dismissal unfair
The Employment Appeal Tribunal has held that where an investigating officer’s recommendations had been heavily influenced by input from human resources dismissal may be unfair.
The employee, in this case, was investigated after concerns were raised that he had been making suspicious purchases using a company credit card and using a hire car for personal reasons.
A manager was appointed to act as both the investigatory and, if necessary, the disciplinary officer. He was inexperienced in disciplinary proceedings and during the course of preparing his report and decision received advice from the employer’s human resources department. The advice he was given was not limited to matters of law and procedure, and level of appropriate sanctions with a view to achieving consistency. It extended to issues of the employee’s credibility and level of culpability.
The manager’s first draft report contained a number of favourable findings so far as concerned the employee. For example, he found that the employee’s misuse was not deliberate; there was no compelling evidence that the employee’s actions were deliberate; that explanations given by the employee for expenditure on petrol were ‘plausible’ and that he had made a persuasive argument in relation to his fuel expenditure and offered a compelling and plausible justification for fuel use being significantly in excess of that expected by his line manager. The manager’s first draft report indicated that he was minded to find the employee guilty of misconduct rather than gross misconduct and that he thought that the appropriate penalty would be a final written warning.
Communications between HR and the manager over a six month period, led to a complete change of view on the manager’s factual findings and recommendations as to sanction. Over the course of various drafts and suggested amendments by HR, favourable comments were removed and replaced with critical comments, the overall view of culpability became one of gross negligence and the recommendation of sanction became summary dismissal for gross misconduct instead of a final written warning.
No new evidence had, however, come to light after the initial report had been prepared.
After the employee was dismissed he brought a claim for unfair dismissal. Dismissing the claim, the tribunal held that the decision was ultimately made by the manager, and that he did not appear to be ‘much influenced’ by the input of HR.
The employee appealed. Allowing the appeal the Employment Appeal Tribunal said that the tribunal should have considered a ruling given by the Supreme Court in 2013 and remitted the case back to the tribunal to reconsider it. The Supreme Court had held that although a dismissing or investigating officer is entitled to seek guidance from human resources or others, such advice should be limited to matters of law and procedure and to ensuring that all necessary matters have been addressed and achieve clarity.
The Employment Appeal Tribunal said that the report of an investigating officer for a disciplinary enquiry must be the product of their own investigations, that the dramatic change in the manager’s approach after intervention by HR was ‘disturbing’, and that HR had clearly involved themselves in issues of culpability, which should have been reserved to the manager.
Case reference: Ramphal v Department for Transport
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