Is it appropriate to rely on advice from HR when deciding to dismiss?

The complexity of employment law and the fear of getting things wrong have the effect that many managers feel almost paralysed when dealing with disciplinary matters. They rigidly and unquestioningly follow advice from HR to the letter, asking for detailed guidance at every stage. While obtaining advice from an HR manager is nearly always a good idea, placing too much reliance on such guidance can bring its own dangers, as demonstrated in the case of Ramphal v Department for Transport.

Mr Ramphal joined the Civil Service in 1995. He held various posts and was latterly an Aviation Security Compliance Inspector. His duties involved overseeing transport and industry compliance with relevant rules and requirements. He undertook inspections, both open and covert.

He was required to cover an area extending from Cornwall to Scotland and in order to carry out his work he was entitled to a hire car. He used a credit card provided to him to cover his expenses, including car hire. He was at the office only once a month. As is usual in such circumstances the credit card was to be used only in connection with his job and personal expenditure was prohibited. In February 2012 he was selected at random for an audit of his expenditure for the period of October and November 2011. He was informed that some 50 items were flagged up for investigation. He met his line manager and it was decided that, taking into account his explanations, none of the items required further consideration.

In June 2012 his line manager was instructed to carry out further checks covering the period from October 2011 to May 2012. Four items were highlighted. There were concerns about overall fuel expenditure and the purchase of early morning coffees. A claim which identified the purchase of two meals was explained because it turned out to be a buy one get one free deal. He purchased a meal for himself and treated his mother to the free meal. Another issue concerned a rail fare to the office when he had been called in for a meeting while on annual leave. There were also queries concerning the purchase of a meal (£13.45) and a petrol purchase (£23.58). These were attributed to the mistaken use of the wrong credit card and both were repaid. All the expense claims had been signed off by his line manager. There appeared to be several other “mistaken purchases”, all of which were refunded. The main concern appeared to be apparently excessive petrol consumption and the possible use of hire cars for personal reasons.

Also in June 2012 Mr David Goodchild, Head of Land Security Compliance, was appointed to carry out an investigation to find out whether there was a case to answer. Most queries were addressed satisfactorily in a meeting with the line manager, leaving those referred to above. Mr Goodchild had not previously acted in disciplinary proceedings so he met with HR and familiarised himself with the disciplinary procedures, noting the distinction between misconduct and gross misconduct and the appropriate penalties. He also received guidance about the procedure to be followed.

On 3 August Mr Ramphal was given notice of a disciplinary charge and Mr Goodchild conducted a disciplinary hearing on 13 August. It emerged that Mr Goodchild had extensive contact with HR in the period from March 2012 to March 2013. As a result of this interaction it became clear that, having had emphasised to him the seriousness of the alleged offences, Mr Goodchild moved from concluding that there was no evidence that misuse constituted a deliberate and premeditated attempt to defraud the department to deciding on the balance of probability that he deliberately misused both the credit card and hire cars, resulting in a finding of gross misconduct and a recommendation that he should be dismissed. Favourable comments were removed and replaced with critical comments and misconduct resulting in a final written warning was replaced with gross misconduct and a recommendation to dismiss.

The resulting employment tribunal hearing took place over three days in December 2012. The decision was reserved (the judge was unwell) and was not delivered until December 2013. The employment judge noted that it was not wrong for an investigating officer to seek and receive advice and guidance from HR. The question was whether how far, if at all, the advice and guidance unfairly or improperly influenced the decision Mr Goodchild made to dismiss. The tribunal was particularly concerned about the apparent changes of mind by Mr Goodchild. However, it was concluded that the process was not rendered unfair by the intervention of HR and the decision was ultimately his own. He was anxious to get the decision correct and had therefore obtained extensive advice. There was no doubt that the employer had an honestly held belief in Mr Ramphal’s guilt and there were reasonable grounds for sustaining that belief. The decision was based on as much investigation as was reasonable and was within the band of reasonable responses open to a reasonable employer. The process was reasonable but had it been unreasonable there was a 100% chance that he would in any event have been unfairly dismissed and he was 100% at fault.

His Honour Judge Serota QC, sitting in the Employment Appeal Tribunal, disagreed.

insufficient investigation made dismissal unfair

Employers should take care to investigate allegations of dishonesty involving breach of trust particularly carefully, suggests the Employment Appeal Tribunal in Stuart v London City Airport.
Mr Stuart was one of 430 ground services employees at London City Airport who was dismissed for gross misconduct. It was alleged that he had gone to a duty free shop in the airport and taken goods without paying for them. His version of events was that a friend had beckoned him over for a chat while he was in the queue to pay for items, and he had not been aware of crossing the threshold of the shop, whereas one witness suggested that he had in fact tried to conceal the goods in his jacket. That witness was not present at any disciplinary hearing or appeal hearing, so her evidence could not be challenged, and the employer did not obtain evidence from other sources suggested by the other employee such as available CCTV, or likely witnesses including the friend or shop assistant manning the till, which could have confirmed or disproved the truth of the allegation of an attempt to hide items.
Since the conduct and scope of disciplinary proceedings is a common concern for many employers, it is worth spending a little time in considering the views of the EAT about what did happen and, more significantly, what should have happened. The facts are outlined in the decision as follows:
On the evening of 21 December 2009 the the Claimant entered Nuance, the duty free shop, to buy some Christmas presents. He chose some items which he stated that he held at all times in his hands; he accepted that he did not use a basket. He first went to pay for them at an un-manned till point, where he queued with another customer before a member of staff told him to go and pay at another till point because that one was closed. He moved over to a different till and began to queue again. During the whole of this period he stated that the items he had chosen were clearly visible in his hands.
What then happened was that he was beckoned over to a seating area immediately outside the shop by another Nuance staff member called Lynette, where she had a conversation with him about the snowy conditions at the airport that day. The Claimant then realised that he was due back from his break shortly and he moved to a refrigerated counter nearby to buy a drink. He still held in his hands the items for which he intended to pay. However, while he was selecting a drink, a police officer came to speak to him, on the basis that he was suspected of dishonestly removing goods from Nuance without paying for them.
The Respondents were informed and the Claimant was suspended on full pay, with effect from 21 December, pending an investigation into alleged gross misconduct involving breach of trust.
The matter was then investigated by the Respondents, as his employers. Statements were taken from Mr Gilani, the Nuance store manager, and from a Nuance staff member, Ms Adenike Adenekan. Strangely, in view of the significance of her evidence, which was very much in dispute, Ms Adenekan did not give evidence, either at the disciplinary hearing or before the Tribunal. Mr Gilani did, on both occasions, and the Tribunal also had his statement which had been made at the time. Mr Gilani’s evidence was that Ms Adenekan had reported concerns that an airport employee inside the shop, later accepted to be the Claimant, was secreting items from the purchasing section under his jacket. The Claimant vigorously denied that. As a result of Ms Adenekan’s report Mr Gilani went on to the shop floor, where he stayed for between 10 and 15 minutes. During that time he saw that there were no other customers in the shop and no queues. He stated that baskets were available for customers but that the Claimant was not carrying a basket.