In the recent case of Ramphal v. Department of Transport (DoT) the tricky question of where HR should draw the line in a disciplinary matter between guiding the decision-maker on the right decision, and making that decision for them, was considered. The results weren’t great for the HR manager involved in this case…

The Facts

The Claimant (Mr. R) had expenses claims flagged as suspicious by the DoT and as a result, the matter was referred to disciplinary proceedings.

The first mistake by the DoT was to appoint one individual (Mr. G) to act as both investigator and decision-maker in this case. Mr. G had not conducted a disciplinary before and was keen to do a good job. He met with HR and discussed how it worked, and what his role was. So far so good. He then conducted his investigation, heard Mr. R’s side, and produced a first draft report setting out his findings and proposed sanction.

What then followed was a protracted back and forth between Mr. G and HR about his report. The communication lasted some six months and left Mr. R waiting to find out the result.

The first report said that there had been misconduct and Mr. G recommended a final written warning. By the time the report was finalized, it said that Mr. R had committed gross misconduct and Mr. G recommended summary dismissal, which duly followed.

The Decision

Mr. R claimed unfair dismissal and, after losing in the ET, the case went up to the EAT.

The EAT looked in great detail at the period of six months between the first report and the summary dismissal and tried to work out how and why Mr. G had completely changed his mind.

The EAT noted that it was not clear from either the documents or the witnesses, how and why the report and the finding had changed and, with nothing else to go on, the Judge concluded Mr. G had been “inappropriately lobbied” by HR. He fixed on the fact that the advice HR gave “was not limited to matters of law and procedure, and level of appropriate sanctions with a view to achieving consistency” but instead “extended to issues of the Claimant’s credibility and level of culpability”.

HR’s Role

The DoT HR team had a rather unfortunate but apt service pledge: “We won’t make decisions for you, that’s your job, but we will be there for you.” It seems that on this occasion, they hadn’t met their pledge.

All HR professionals know that they are not the decision-maker but, in reality, all HR professionals will also be familiar with decision-makers who won’t make a decision and need more than a little guidance. This case is a great reminder of how not to go about dealing with those situations.

How to Stay Within the Boundaries

Here are a few points to keep on the right side of the line in this tricky area:

1. Lay the ground rules: meet with those involved at the outset, explain the process and each person’s role.
2. Think before you type: unless you are seeking legal advice and a lawyer is involved, communications between HR and the decision-maker will be disclosable in court.
3. Hands off: as above, think about the documents being created and how you input into them. In this case HR’s fingerprints were all over the reports, and not in a good way.
4. On the record: In circumstances where you feel the decision-maker is going about it all the wrong way, get your advice to them on the record. If it is about keeping the Company consistent, or concerns law or procedure, it will help to have it in writing.
5. Let’s adjourn: If it becomes clear that the decision-maker needs more information, recall the employee. This way, you support the decision-maker, the employee has been able to make representations and, above all, you ensure fairness is achieved.