We report on a significant decision of the Employment Appeal Tribunal.
This was a case of dismissal for gross misconduct, in which the claimant, Mr Ramphal had been accused of fabricating expenses, notably excessive petrol use and suspicious cups of coffee.
The legal test of fairness in disciplinary dismissals is, essentially, whether the employer believed the employee to be guilty of misconduct; whether they had reasonable grounds for this belief; and whether they had carried out a reasonable investigation informing that belief. This is the famous test laid out in the case of British Home Stores v. Burchell.
In the present case, the disciplinary officer who had initially looked into the allegations against Mr Ramphal (Mr Goodchild), had made findings that were favourable to him, such that the expenses omissions were not deliberate, and had plausible and consistent explanations. Mr Goodchild’s initial view was that the case only warranted a finding of misconduct and a final written warning.
However, Mr Goodchild sent the report to the employer’s (the Department for Transport’s) HR department for their input and, after 6 months of communications, various amendments were suggested to the report in which favourable comments were removed, and a finding of gross misconduct put in place.
At the Employment Appeal Tribunal, Mr Ramphal referred to the case of Chhabra v. NHS, which states that the role of HR should be limited to questions of law and procedure in cases such as this, and should not stray into questions of culpability.
The EAT agreed that Chhabra should apply, and sent the case back to the Tribunal for re-assessment, due to the undue influence of HR in the substantive decision.
HR is very commonly involved in cases such as this. Obviously, in this case, there was a very heavy degree of involvement by HR in the decision, and the EAT commented that, such was the extent of the input, that it may have amounted to improper influence.
In reality, however, employers will commonly be looking to HR to give opinions on culpability, as decisions on culpability will undoubtedly have legal ramifications. Indeed, very often, the decision making process is handed over to HR in its entirety.
HR will therefore need to be very careful about the extent of their involvement in disciplinary decisions in future.
One potential consideration is that advice from a solicitor would be privileged, and would not be disclosable in Tribunal or Appeal Tribunal proceedings, meaning that formal legal advice may be preferable when employers are looking for a steer on culpability.