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.
The advice given by HR went significantly beyond advice limited to process and procedures. The tribunal failed to explain what it was, if it was not the advice from HR, that led Mr Goodchild to change his mind. It was clear that the HR officer believed that there had been fraud – he was anxious to know to what extent the Department had been “defrauded”. Fraud requires dishonest intent but Mr Goodchild has initially concluded that there was no dishonesty. Mr Goodchild’s views had been reshaped. It was clear that HR involved themselves in issues of culpability which should have been reserved to Mr Goodchild. the changes were so striking as to give rise to an inference of improper influence. Judge Serota QC made the following general observation:
I consider that an employee facing disciplinary charges and a dismissal procedure is entitled to assume that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability, and that he should be given notice of any changes in the case he has to meet so that he can deal with them, and also given notice of representations made by others to the Dismissing Officer that go beyond legal advice, and advice on matter of process and procedure.
The appeal was successful and the matter was remitted to the same employment judge to decide whether, on the basis of the judgment, the influence of HR was improper and, if so, whether it had a material effect on the ultimate decision made by Mr Goodchild.
It is worth noting that, having waited a year for the reserved decision of the employment tribunal, Mr Ramphal had to wait for seven months for the decision of the EAT, the hearing having taken place in February 2015 and the decision not being handed down until 4 September.
