Controlling and Coercive Behaviour: Widening the Net
If you find yourself appointed to conduct a disciplinary investigation into the conduct of an employee, beware of soliciting too much “help” from your HR department. Although some assistance is perfectly acceptable, i.e. questions concerning the law or procedure, this advice should not stray into the realms of the culpability of the employee, which is a factual decision for the investigating officer to make alone.
In the recent case of Ramphal v Department for Transport, the Employment Appeal Tribunal considered the intervention by the Department for Transport’s HR department in the decision to dismiss Mr Ramphal. Mr Ramphal was an Aviation Security Compliance Inspector, a role which required him to travel the length and breadth of the country. As a consequence, he was allowed to use a hire car, and was issued with a credit card with which to pay for the hire car, fuel and other expenses related to his job.
A random audit was carried out into Mr Ramphal’s expenses, and a number of irregularities were brought to light. Some of these suspicious expenses included excessive petrol consumption; dinners and coffees for two (which Mr Ramphal claimed were “BOGOFs”) and other restaurant bills which he claims were the result of “mistaken use of the wrong credit card”. The manager appointed to investigate this matter (and later to carry out the disciplinary procedure) was Mr Goodchild – a seemingly indecisive man, who was inexperienced in disciplinary proceedings.
Mr Goodchild’s initial report found Mr Ramphal’s explanations to be plausible, and he was compelled to conclude that Mr Ramphal was guilty of misconduct but not gross misconduct. His suggested sanction was “a final written warning as to his future conduct”.
However, during the process Mr Goodchild received a substantial amount of advice from the HR department. The HR representatives advised on the severity of the allegations; suggested that Mr Goodchild might like to consider the different colours of Mr Ramphal’s work and personal credit cards; made suggestions as to Mr Ramphal’s “integrity and trust” and suggested “a number of factual alterations” to Mr Goodchild’s report. Following this plethora of advice from the HR department, Mr Goodchild’s report eventually evolved into a damning accusation of gross negligence, replacing the favourable comments with critical observations and recommending summary dismissal for gross misconduct.
HHJ Serota QC was of the opinion that this about-turn was the result of the interference of the HR representatives, and described this “dramatic change” in approach as “disturbing”. In his opinion, advice from an HR department is permissible, but only in so far as it is limited to questions of law, procedure and process. The advice in this matter went much further than this, touching on Mr Ramphal’s culpability and even advising on what they felt was the most appropriate sanction.
HHJ Serota QC concluded that any employee facing disciplinary charges should be “entitled to assume” that the appropriate officer alone will have taken the decision, without being “lobbied by other parties” as to the appropriate outcome. The matter was referred back to the Employment Tribunal to decide whether or not the influence of the HR department was improper, and if so whether this had a material effect on Mr Goodchild’s decision. However, HHJ Serota QC did add that, in his opinion, this was an example of improper influence which had had a material effect.
The Ramphal case relied heavily on the 2013 Supreme Court judgement in West London Mental Health NHS Trust v Chhabra, which concerned a psychiatric consultant under investigation in response to various concerns. These concerns included her working relationship with her team, and also allegations of breach of patient confidentiality after she dictated patient reports on the train. Chhabra involved the very specific context of the NHS framework for disciplinary procedures for NHS doctors and dentists, and the breach of an undertaking from the NHS Trust’s solicitors that a particular HR Director would not be involved in the investigation. Ramphal therefore provides a useful extension of the findings in Chhabra outside of its specific context and facts.
Employers should therefore take particular care following these two cases that investigating officers in disciplinary processes, and HR departments, are aware of the limits to which the latter can give advice to the former. An explanation of the relevant law and procedure to be followed is fine, but stray into the territories of factual findings; opinions about the accused employee; culpability and sanctions, and you risk the procedure being held to be unfair.
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