In a recent case in the EAT (Ramphal v Department for Transport (DoT), it was highlighted that in some cases when a HR team investigate an employee’s conduct, it can go too far and result in unfair dismissal of an employee.
In the above case, the basic facts of the case were that Ramphal was employed by DoT and was required to spend a high amount of time driving, and was therefore entitled to claim a range of expenses. Rather than claiming these back, Ramphal had a company credit card, which he used to hire a car, cover petrol and cover basic food and drink costings.
In February 2012, the claims were audited and some of the expenses required investigation, which led to Ramphal having to provide satisfactory explanations, following which the matter was dropped. But in June 2012, his claims for petrol use were seen as excessive and the company spotted items such as claiming for two cups of coffee as suspicious, as a result of which his expenses were investigated again.
In September 2012, HR produced a draft of the investigation into Ramphal’s expenses. The report covered the fact that Ramphal provided plausible and consistent explanations for his petrol claims. Notwithstanding this, the investigation officer recommended a finding of misconduct and Ramphal received a written warning.
Discussions lasted six months between HR and the investigating officer, and the HR department heavily influencing amendments to be made to the report’s conclusions and arguments against Ramphal and leading to the report being changed significantly. Once these changes were made, the final recommendation from the investigating officer on the matter became much worse than the initial recommendation of a written warning and turned into an instant dismissal for gross misconduct.
Ramphal was dismissed, and he lodged a claim to the Employment Tribunal. The Employment Judge rejected the claim concluding that the decision to dismiss was reasonable in to the circumstances. Ramphall appealed to the EAT and won the case partly based on a decision the Supreme Court had made previously on a similar case (Chhabra v West London Mental Health NHS Trust).
The Supreme Court’s decision in the Chhabra case led to guidelines being established for the role of HR and how much they should be involved in disciplinary investigations, concluding that it is not for HR to conclude on the matter of blame.
What does this mean for your business?
If you are completing an investigation into employee conduct, the person investigating will normally consult someone in HR. However, you should try to limit HR’s input, only allowing them to assist with preparing reports, and to ensure matters of law, process and procedure are addressed. Any decisions on the fault and punishment on the employee, should not be decided by HR, this should be done by the person investigating.
