You are asked for advice from
an inexperienced line manager
handling their first disciplinary
process who is making a real hash
of it. Do you take over and get the
whole thing back on track?
A recent case
Department for Transport provides
some salutary guidance.
Mr Ramphal’s job involved a lot of travel. He
was supplied with a hire car and a company
credit card which he could use to pay for fuel
and other expenses.
A routine audit highlighted 50 concerns about
his expenses. These were all investigated by
his line manager who accepted Mr Ramphal’s
explanations. There was then a further audit
and four further concerns were identified. A
manager called Mr Goodchild (who had no
prior experience of disciplinary investigations)
was appointed to investigate and determine
if there was a case to answer. He did his best
and produced for HR’s approval a report which
concluded that Mr Ramphal’s explanations
for his expenditure were “consistent” and
“plausible”. He considered that the most
appropriate course of action was a warning for
The HR department set to work on the report
and over a staggering five month period,
the report metamorphosed into finding
that Mr Ramphal had been dishonest and
it was appropriate to dismiss him for gross
misconduct. Mr Goodchild, presumably buoyed
up with confidence, went ahead and dismissed
Mr Ramphal who promptly claimed that he
had been unfairly dismissed.
Although the Employment Tribunal, initially,
found that the dismissal was fair the
Employment Appeal Tribunal referred the
case back to the Tribunal to find out what
happened between the first and final draft
versions of the report.
The Tribunal will have to determine if HR’s
input “strayed” from providing advice on the
law or procedure to be followed (which is
permissible) or if they influenced the decision
(which is not). If the Tribunal finds that the
decision to dismiss was not Mr Goodchild’s
alone, the dismissal is likely to be found to be
Lessons for HR
Remember that you will be required to
disclose all correspondence (including drafts
of reports or letters) if you receive a legal
claim because these types of documents do
not attract legal privilege.
Set out in writing the relevant legal issues
the investigator or disciplinary manager
should consider before they start the process
and the sanctions that might be appropriate
(and have been given in other similar cases).
Give advice in writing on the law and
procedure to be followed – such as who it
might be appropriate to interview, the
burden of proof and how to record the
Make sure that the investigating officer
has asked all relevant questions. If
something has been missed (particularly
if it might affect the decision), it is perfectly
permissible to ask the investigating officer
to re-consider and re-interview witnesses or
interview new witnesses. It is also fine to ask
the officer to explain their thought process or
conclusions if their rationale is unclear.
Provide training for all investigating officers.
A lot of potential problems with
investigations (e.g. incomplete reports,
inconsistencies in the approach taken to
investigations and the burden of proof)
can be avoided if those who are carrying out
investigations have been properly trained.
Alter a report or the recommendation (this
includes omitting the bits you don’t like or
disagree with) or make the decision for the
officer, or give the impression that you have
Legislation tracker - What does 2016 have in store?
Case tracker - What does 2016 have in store?
News in brief
Focus on HR - How not to handle a disciplinary process
Do you need to treat the time your workforce spend travelling to and from work as “working time”?
Case law update
Download Winter 2016 issue (PDF)
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