HR should not pull the strings in tribunal processes
Charles Wynn-Evans, October 09, 2015
HR professionals interfering in tribunal decision-making processes may lead to a verdict of unfair dismissal
In the Ramphal v Department for Transport employment appeal tribunal case the claimant employee came under investigation into possible misconduct related to his expenses and hire car usage. The manager appointed to investigate, and potentially act as dismissing officer, received advice from the employer’s HR team while preparing his report and decision.
This advice was not just about the applicable procedure but also what sanction would be appropriate so that the employer would achieve consistency. HR’s advice to the manager addressed the employee’s credibility in defending his position and how culpable he was as well. The manager’s first draft report indicated that his view was that the employee had been "guilty of misconduct rather than gross misconduct and that he should be given a final written warning as to his future conduct".
However, after input from HR, the manager’s eventual conclusion in his report was that, on the balance of probability, the employee was guilty of gross misconduct and the manager’s recommendation was that the individual should be dismissed. This recommendation was subsequently changed to one of summary dismissal.
In appealing to the EAT against the employment tribunal’s fair dismissal decision the employee argued that since no new evidence came to light after the manager’s initial report, and the employment judge failed to explain what persuaded the manager to change his views so dramatically, the tribunal’s decision was deficient and unsafe. He [the employee] claimed it did not address sufficiently the change in the manager’s position, with the suggestion that the manager had been “inappropriately lobbied” by HR to take a more critical view of the employee’s conduct and to reject explanations for certain expenditure that the manager appeared originally to have accepted.
The EAT concluded that the appeal should succeed and the case should be referred back to the employment judge to consider whether the influence of HR was improper, and whether it had a material effect on the manager’s conclusions regarding the employee’s culpability and the appropriate sanction.
In reaching this decision the EAT gave HR a very clear steer as to its proper advisory role. As the EAT put it: although a dismissing or investigating officer is entitled to seek guidance from HR or others, this advice should “be limited to matters of law and procedure and to ensuring that all necessary matters have been addressed and achieve clarity”. An employee is entitled to expect that the decision will be taken by the appropriate officer, without having been lobbied by other parties. In addition, if there are any changes in the case that he has to answer to the employee should be informed of them.The Ramphal v Department of Transport case stands as a stark warning to HR of the need to ensure that it performs its proper function of advice and assistance. Moreover, the case also demonstrates that internal communications between HR and managers can provide the employee with evidence upon which to base an attack on the fairness of a dismissal decision.
Charles Wynn-Evans is a partner at international law firm Dechert