The Role of HR in Disciplinary Proceedings

What should be the role of HR in disciplinary proceedings? Should HR be the decision makers? If HR are involved is there a risk that a decision to dismiss could be unfair? These are questions which crop up a lot from my clients and continue to cause concern among the HR community. This month I am going to look at two Employment Appeal Tribunal cases which help us with the answers.

You may remember the case of Ramphal v Department for Transport. It deals with HR advice during investigations and disciplinary proceedings when someone else is the investigating and/or disciplinary officer.

Mr Ramphal’s story

Mr Ramphal worked as an Aviation Security Compliance Inspector for the Department for Transport. His duties involved overseeing transport and industry compliance with rules and regulations. He undertook open and covert inspections and had stakeholder meetings.

Mr Ramphal spent a lot of time on the road as he covered territory from Cornwall to Scotland. He was entitled to subsistence and a hire car. Mr Ramphal paid various expenses, including hire cars, with a credit card that had been issued to him. The credit card was only to be used for business expenses. There were limits on the subsistence Mr Ramphal was entitled to if he was close to his home. Mr Ramphal was only at the office about once a month and had little face to face contact with his line manager.

Mr Ramphal was selected for a random audit of his transport and subsistence claims. There were concerns about his use of the corporate credit card, his fuel expenditure and use of hire cars for personal reasons. Mr Ramphal had claimed for a meal in a restaurant and a petrol purchase for personal reasons. He said that he had used the corporate card by mistake instead of his personal credit card and repaid the sums.

His employer launched an investigation into possible misconduct by him. A manager, Mr Goodchild, was appointed to conduct the investigation and act as dismissing officer if necessary. Mr Goodchild was inexperienced in disciplinary proceedings. During the course of preparing his report and decision, he received advice from HR. At first glance there is, of course, nothing wrong with that.

However, the HR officers didn’t restrict their advice to matters of law and procedure, or the level of appropriate sanction with a view to achieving consistency. That would all have been fine for the HR team to advise upon. Instead they also advised Mr Goodchild on Mr Ramphal’s credibility and his level of guilt.

Mr Goodchild’s first draft report was partly critical but contained a number of findings which were favourable to Mr Goodchild. He thought that Mr Ramphal’s misuse of the corporate credit card was not deliberate and believed his explanations that he had made mistakes. Mr Goodchild thought that Mr Ramphal’s explanations for high fuel use were plausible and compelling.

Mr Goodchild wrote “I am not able to prove that he is not telling the truth.” He concluded that he found Mr Ramphal guilty of misconduct rather than gross misconduct and that he should be given a final written warning, instead of being dismissed.

However, after he had drafted his report he had more discussions with HR. These discussions were not documented. He produced further drafts of the report which became more critical of Mr Ramphal. The final report found him guilty of gross misconduct for misuse of the corporate card and misuse of hire cars funded by his employer. He was then dismissed. His internal appeal was unsuccessful.

The Tribunal Decision

Mr Ramphal brought a tribunal claim but was initially unsuccessful. The employment tribunal judge decided that Mr Goodchild had come to the decision to dismiss himself, despite the changes to the various drafts of the report. The judge noted that Mr Ramphal was in a position of trust - integrity and honesty were key requirements of his job.

Mr Ramphal appealed to the EAT arguing that Mr Goodchild’s decision to dismiss was improperly influenced by the HR officers.

The appeal decision

The EAT followed the Supreme Court case of Chhabra v West London Mental Health NHS Trust which held that an HR department can give advice to investigating officers on questions of procedure and can assist to ensure clarity in investigation reports. However, it should not make alterations to an investigation report so that it ceases to be the product of the investigating officer.

The EAT in Ramphal recognised that a manager conducting the investigation or disciplinary hearing is entitled to seek guidance from HR. However, it made clear that this advice should be limited to matters of law and procedure and to ensuring that all necessary matters have been addressed.

The employee is entitled to expect that the decision will be taken by the manager, without having been lobbied by other parties as to the findings he should make as to guilt or fault. The employee should be given notice of any changes in the case he has to meet, so that he can answer them. Mr Ramphal was not made aware of changes to the case against him as a result of HR interventions.

The judge in the EAT found it disturbing to note the dramatic change in Mr Goodchild’s approach after intervention by HR. No explanation of this change had been given. The judge held that it was not for HR to advise whether the finding should be one of simple misconduct or gross misconduct. The EAT upheld the appeal.

Daniel’s comment

This case is really about covert interference by HR, ie improperly influencing the decision maker to change his decision and persuading him to dismiss instead. There was no opportunity for Mr Ramphal to argue his case to the true decision maker, who in this case was really HR, not Mr Goodchild. The process should be transparent and it was not.

Of course, most HR professionals wouldn’t dream of trying to interfere with a disciplinary manager’s decision. Yet sometimes you may find yourself being asked by a manager what they should do and what decision they should make.

I recommend you stay away from decision-making in this scenario. You can instead give advice on technical areas such as:

• what the law and the ACAS code of practice says;
• what your policies and procedures say and advice on how to follow a fair procedure;
• the type of conduct that could amount to misconduct or gross misconduct; and
• whether the sanction proposed is consistent with other decisions by the employer.

And if you do find yourself tempted into giving your personal view, always add the four magic words: 'but it's your decision'. So "If I were you, I'd dismiss." is not acceptable; whereas "If I were you, I'd dismiss – but it's your decision." will normally be okay.

HR as decision-maker

Most disciplinary policies will make clear that a manager will be the investigator and disciplinary hearer, taking advice from HR on technical matters. This certainly makes it simpler.

What happens when HR does need to be the decision-maker? You may have no option in smaller organisations. Perhaps due to lack of available senior people, lack of experience or the complexity of the case. Some employers bring in HR consultants to do this role and their policies reflect this. So given Ramphal, will this make a decision to dismiss by HR unfair?

The case of Arnold Clark Automobiles Ltd v Spoor is useful to look at here.

Mr Spoor’s story

Mr Spoor was a Motor Vehicle Technician for Arnold Clark and had worked for them for over 42 years. One day, one of the apprentices (Mr Chapman) was having difficulty in operating a printer in the computer room.

Mr Spoor thought he knew what was wrong and suggested that the paper drawer be opened to see if the paper had jammed. Mr Spoor recommended putting more paper in the drawer. Mr Chapman insisted that extra paper was not required. (You know where this is going.)

Mr Spoor lost his temper and accused Mr Chapman of not listening to him. He allegedly grabbed him in the vicinity of his neck.

Mr Spoor apologised to Mr Chapman later. Meanwhile, Mr Chapman had reported the incident to a manager, who decided not to proceed with any formal disciplinary action. Instead he issued Mr Spoor with a ‘letter of concern’ in accordance with Arnold Clark’s informal procedure. Mr Spoor apologised again and the two shook hands and returned to work.

Handbags

The manager sent a copy of the letter to HR. It read, “Had some handbags between two guys here and we will be issuing [Mr Spoor] with this letter. A copy for your records.”

At this point we have to assume that the HR officer Ms Kilshaw had her head in her hands.

Ms Kilshaw spoke to the manager and established that there had been an allegation of what she considered to be physical violence. Mr Spoor was alleged to have grabbed the apprentice by the throat. Ms Kilshaw began a formal investigation and suspended Mr Spoor. Mr Spoor said that he may have caught the apprentice’s throat but did not ‘have him’ by the throat.

Mr Chapman said, “The next think I know he’s got his hands round my neck.” When asked how long Mr Spoor had his hands round his neck, he replied, “Just a couple of seconds. I pushed him off and then he told us to get my hands off him and I didn’t have my hand on him like.”

Dismissal by HR officer

Mr Spoor was called to a disciplinary hearing which was conducted by another member of HR, Ms Fowler. Ms Fowler dismissed Mr Spoor for physical violence. She said that, “We deem any form of any physical violence as unacceptable.”

Unfortunately, Ms Fowler did not take account of Mr Spoor’s length of service and previous good character. In fact, when giving evidence in the employment tribunal, she said that these were not matters to which she should have any regard whatsoever. She insisted that Arnold Clark operated a zero-tolerance policy towards physical violence. She didn’t consider it appropriate to undertake any assessment as to the level or degree of physical violence.

Mr Spoor appealed. The appeal manager was a senior HR adviser. The decision to dismiss was upheld. The appeal hearer also insisted that there was a zero-tolerance policy towards any incident of physical violence and that any such incident would inevitably result in immediate dismissal.

The tribunal decision

Mr Spoor raised a claim for unfair dismissal and was successful. The employment tribunal found that the investigation was not within the range of responses open to a reasonable employer in all the circumstances. No attempt was made to discuss the matter with Mr Spoor’s managers or get their assessment as to the seriousness of the incident.

The tribunal referred to the Ramphal case and decided that Mr Spoor’s case was one of those cases where the HR officers involved had unreasonably and improperly imposed their own assumptions and opinions, in circumstances where their involvement was, in the view of those best placed to decide, simply not required.

The tribunal also decided that no reasonable employer would have dismissed Mr Spoor, taking account of all of the circumstances including his previous record. Mr Spoor’s compensation was reduced by 50% to take account of his own contribution to his dismissal.

Arnold Clark appealed.

The appeal decision

The Employment Appeal Tribunal agreed that the dismissal was unfair. The judge felt that there was no evidence that Arnold Clark operated a zero-tolerance policy towards physical violence. The judge highlighted that the disciplinary procedure even used the word ‘normally’ when talking about the sanctions. The disciplinary and appeal hearers should have looked at all of the circumstances, including Mr Spoor’s exemplary record.

Importantly, the EAT did say that the tribunal judge had misapplied the Ramphal decision here. The EAT highlighted that in Mr Spoor’s case, HR were the actual decision makers, so Ramphal did not apply.

Daniel’s comment

Ms Fowler’s mistake here was in not taking the degree of violence, Ms Spoor’s service, or disciplinary record into account. If she had taken them into account, but ultimately believed that the violence trumped the previous unblemished record, then the outcome may have been different. By not considering them at all, the dismissal was unfair.

The Spoor case does not mean that HR can never be decision-makers. It just shows that if you are the decision-maker, like everyone else, you need to follow a fair procedure and consider all the circumstances before making your decision.

If, as an HR professional, you have been appointed to be the investigator or disciplinary officer, then it’s really important that you have no role in advising at any other stage in the process. For example, if you perform the investigation, then you must not provide HR advice to the disciplinary or appeal managers. The smaller the HR team, the more difficult this will be in practice. It’s also vital that your other HR colleagues do not interfere with your decision. 

Even if everyone acts properly and independently, your organisation may struggle to prove it has acted fairly. The perception may be that HR has orchestrated the dismissal. If you are the decision-maker, keep a careful note of who you talked to in coming to your decision. Do not be tempted, even informally, to get involved in the later stages.