Decision-Makers Should Not be Lobbied in Disciplinary Matters
In Ramphal v Department For Transport, HHJ Serota QC sitting at the Employment Appeal Tribunal (EAT) observed that it was disturbing to note a dramatic change in approach by an Investigating Officer, and where necessary, Decision Maker, after intervention by the DfT’s Human Resources, and found this went against the principles of Chhabra v West London Mental Health NHS Trust.
The principal reaffirmed that investigating officers or decision makers in disciplinary matters should be left to make decisions for themselves, regardless of previous experience in this area; lobbying by others to influence any preferred outcome would leave any decision open to doubt as to its fairness.
In this case, Mr David Goodhill was the Investigating Officer, and was also charged with making a decision on sanctions if appropriate. Inexperienced in this area of work, advice was sought from the internal HR department. However, after noting that there were numerous draft reports, amended after advice from HR, the EAT deemed that the subsequent decision on unfair dismissal could not stand – the case was sent back to the employment tribunal to decide whether the dismissal was fair once consideration is given to the influence/advice of the HR advisors, who do appear from the judgment to have caused Mr Goodhill to make a finding of gross misconduct, rather than misconduct – his initial view on the case.
For small employers with few senior staff to carry out these roles (many will have to be the employer, investigating officer, decision maker, and appeal officer too), it’s important that each role you need to fulfil is carried out fairly & impartially, regardless of the obvious familiarity with the employee & the issues – not an easy exercise. And where advice is sought, this should be impartially sought, not with a desired outcome determined in advance, enabling any independent HR advisor to give the advice necessary to keep you in the fair dismissal camp. This shouldn’t prevent any dismissal or other disciplinary action, but it does serve as a reminder that you can outsource simple matters like investigations or decisions, and then be safe in the knowledge that someone professional & impartial is dealing with it.