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The Employment Appeal Tribunal (EAT) has allowed an appeal against the original Employment Tribunal’s decision that an employee had been fairly dismissed in circumstances where the Investigating Officer’s recommendations had been unduly influenced by input from Human Resources.
Facts of the Case
The Claimant was employed by the Department for Transport (DFT) as an Aviation Security Compliance Inspector. His duties required a significant amount of travel, for which he was entitled to receive subsistence. He was entitled to hire a car and he had a company credit card to pay for the vehicle as well as expenses. He was not permitted to use the credit card for personal expenses and there were limits on the subsistence he was entitled to.
In February 2012, the Claimant was selected for an audit of his transport and subsistence claims which highlighted 50 items to which the Claimant was unable to explain the items to his manager. No further action was taken.
An investigation was conducted again in June 2012, following further concerns and excessive petrol use. The DFT appointed a manager to carry out the investigation and also the disciplinary. The manager had no previous experience of disciplinaries and therefore met with HR Officers for guidance, as well as reviewing the company’s disciplinary procedures. The Disciplinary Hearing was held on 13th August 2012.
On 11th September 2012, the manager sent his first draft of his report to Human Resources. Although the report was mainly critical, it did contain a number of favourable findings in relation to the Claimant such as finding the Claimant’s misuse was not deliberate. The manager therefore recommended that a sanction of a final written warning to be issued.
Communications between the manager and HR then followed for approximately 6 months leading to a complete change of view on the manager’s findings of fact and recommendations on the sanction. Over the course of the various drafts of the outcome, HR suggested amendments and the favourable comments were removed and replaced with critical comments. The overall view became one of gross negligence with a recommendation of summary dismissal for gross misconduct. The Claimant was therefore dismissed and sought a claim for unfair dismissal.
The Employment Tribunal concluded the decision was based upon as much investigation as was reasonable in the circumstances, and therefore the decision to dismiss was within the band of reasonable responses open to a reasonable employer. The Employment Judge felt that the manager did not appear to be “much influenced” by HR. The Claimant appealed.
Decision by the EAT
The EAT allowed the appeal and remitted the case back to the Employment Tribunal to consider the claim again. The EAT held that the report of an Investigating Officer for a disciplinary enquiry must be the product of their own investigations. They therefore found that the dramatic change in the manger’s approach after the HR’s intervention was “disturbing” and, HR clearly involve themselves in issues of culpability which should have been reserved for the manager.
The changes were such that they gave rise to an inference of improper influence. The Employment Judge should have given clear and cogent reasons for accepting that there was no such influence.
An Investigating Officer is entitled to call for advice from HR but the advice must essentially relate to questions of law and procedure and avoid straying into areas of culpability. This case therefore provides employers with helpful guidelines as to exactly how much involvement and influence HR should have in such matters. In particular, HR should not advise on what appropriate sanctions should be, outside of addressing issues of consistency. Significant influence by Human Resources in the outcome of an investigation could potentially compromise the fairness of the investigation process and result in a finding of unfair dismissal.
Case: Ramphal v Department for Transport UKEAT/0352/14
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