Posted on 21 Feb 2020
HR is the expert in the business when it comes to employment law; it’s their job to advise and coach managers to handle employee relations issues fairly and to make sure the company avoids costly employment tribunal claims and reputational damage. It’s worth knowing, though, how the Employment Appeal Tribunal (EAT) defined the extent to which HR may legitimately influence the disciplinary outcome in Ramphal v Department of Transport.
The case summary
Goodchild, a manager with no experience of managing disciplinary procedures, was appointed to investigate an allegation of misconduct in relation to Ramphal’s expense claim for his use of hire cars. Goodchild came to several conclusions in Ramphal’s favour in the first draft of the investigation report, including that the use of hire cars was ‘not deliberate’ and his explanations for fuel claims were ‘plausible’. Goodchild concluded that Ramphal was guilty of misconduct rather than gross misconduct and should be given a final written warning.
Following meetings with HR, and based on exactly the same evidence, Goodchild’s conclusions were removed from the report. The final version concluded that Ramphal had deliberately misused his company credit card and was guilty of gross misconduct. On this basis, he was summarily dismissed.
The employment tribunal expressed concerns about Goodchild’s apparent change of mind but concluded that it was, in fact, his decision and the dismissal was fair.
The EAT took a different view. It concluded that there is an implied contractual right to a fair disciplinary process and while HR can advise on matters of procedure, the report had to be the work of the investigating manager. In the Ramphal case, the EAT decided that HR had significantly overstepped the mark in terms of its involvement. Among its guidance, it stated that HR must limit its advice to questions of law, procedure and process rather than culpability. It went on to conclude that if the integrity of a disciplinary decision is influenced by an individual not directly involved in the procedure, it would be unfair, particularly if the employee had no knowledge of it.
HR would not be doing its job if it stood idly by and allowed a manager to make the wrong disciplinary decision for fear of being accused of crossing the boundaries, so it makes sense to avoid this pitfall by taking steps to reduce managers’ reliance on HR when it comes to handling disciplinary issues.
Have a clear and well-communicated disciplinary policy
Your Disciplinary Policy should be accessible to all employees and mirror the framework set out in the ACAS Code of Practice on Disciplinary and Grievance Procedures. The policy should be used as a key point of reference at each stage of the disciplinary process to ensure fairness and consistency.
Train managers to handle disciplinary issues
All managers must be consistent in putting your Disciplinary Policy into action. To keep them on the same page, hold regular workshops and prioritise recently appointed and promoted managers, who may be new to people management.
Communicate case law decisions
Bring employment law to life by communicating case law decisions to the people management population to demonstrate the basis on which tribunals arrive at their decisions. Use this as a tool to emphasise the importance of following the correct procedure, acting consistently and ensuring fairness and reasonableness in all respects, and the potential financial penalties for failing to do so.
Coach managers at all stages of a disciplinary process
Don’t be put off from staying close to managers as they handle disciplinary issues by coaching them to comply with employment law and your company’s Disciplinary Policy but without diminishing their accountability for the final decision. You will have in-depth knowledge of the disciplinary sanctions given in similar circumstances in the past, so share this with the manager concerned who can use the information as another point of reference when reaching their decision.
Warning letters should be in managers’ own language
Warning letters are normally written by HR or an employment lawyer. There are good reasons for this because they might become critical evidence at an employment tribunal, so they need to be detailed and demonstrate the company’s compliance with all the key benchmarks of fairness. However, if the letter is clearly not written in the line manager’s language, there is a risk that the tribunal may infer from this that the disciplinary decision might have been unduly influenced by someone not directly involved in the process.
For more information about how to manage discipline, get in touch!