Blog: A word in your ear…

How far can HR staff go in advising on whether to dismiss? When does setting the guidelines become pulling the strings? In the case of Ramphal v Department for Transport the EAT has provided a salutary reminder that interference can come back to bite you.

Mr Ramphal was being investigated over his expenses claims and use of a company credit card. The investigating manager (who was also, unhelpfully, the disciplining officer) initially concluded that his conduct had been careless and ill-advised but that his explanations were plausible and there was no evidence of dishonesty. He proposed a finding of misconduct and a sanction of a final written warning. However, before the decision was issued to Mr Ramphal, it went backwards and forwards between two HR managers and the author. By the end of this process, the exculpatory comments had been removed, and the conclusion had become summary dismissal for gross misconduct.

The manager in question was inexperienced at conducting disciplinary hearings and, reading between the lines, one can infer that the more ‘hard-bitten’ HR professionals felt he’d been taken in by some pretty unconvincing explanations by the employee. Their conclusions and supporting reasons would no doubt have been within the band of reasonable responses, but the basic point highlighted by the EAT decision in this case is that it simply wasn’t HR’s job to reach those conclusions or to steer the dismissing manager so firmly. HR advice being provided to the disciplining manager should be limited to process and procedure, and on ensuring sanctions are consistent for employees committing similar misconduct. It is not within HR’s advisory remit to make decisions on credibility or culpability.

That’s a very easy distinction for a judge to make, much harder to apply in practice, particularly when managers will often look for a high level of guidance and support from HR and be very ready to feel that, if they don’t get told precisely what to do, HR are not ‘doing their job’. I also wonder whether judges (for whom assessing credibility and making decisions based on weight of evidence and probability is bread and butter) always realise just how hard making those judgments can be for other people. I believe it’s especially difficult for those who are naturally thoughtful, careful and empathetic, i.e. exactly the sort of people who, with training and practice, will be best at making decisions of this sort.

You don’t need to abandon your managers altogether during a disciplinary hearing in order to avoid the Ramphal trap, but do think about how you can coach them to reach strong, reasoned decisions. Emphasise that they do not need to be sure ‘beyond doubt’ about a particular fact, and they are entitled to take into account common sense and inherent probability, as well as ‘hard’ evidence. A lot of this can be done through training and general guidance, for example using case studies, thereby avoiding the risk of ‘contaminating’ a live case.

Where you do have concerns about the approach a manager is taking, you might try some gentle challenging by pointing out helpful things such as, for example, that it is less likely for an employee to make a mistake three times in quick succession, or that it seems odd to confuse a personal credit card with a business one if they are very different in colour. If this results in the manager having a re-think, then it remains the manager’s decision and they should be well placed to defend it if needs be. If the manager sticks by their guns, then perhaps it’s time to chalk this one down to experience. Chances are that two years down the line you’ll have reached situation normal – arguing with him that he can’t just go ahead and fire someone because he wants to!

Finally, it’s worth noting that without the paper trail of amended drafts of the investigation report, Mr Ramphal would have had little to base his case on. In a sensitive case, you may want to involve a lawyer to gain the benefit of legal professional privilege so that the drafts can’t be disclosed. Otherwise, it might be helpful for managers to decide on the bones of their conclusions after the hearing, where verbal advice from HR is on hand.

It’s fully understandable that you will be keen to keep many disciplining managers on a short leash, and that they find a lot of comfort in that, but this is one occasion where you may need to train them better to walk off the lead…

Joanne Sefton
Barrister, Menzies Law