Irwin Mitchell | Focus on Employment | How not to handle a disciplinary process?

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 Ramphal v Department for Transport provides some salutary guidance.

The facts

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 misconduct.

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.

Decision

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 unfair.

Lessons for HR

Do:

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 findings.
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.

Don’t:

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 done so!