In a disciplinary situation it is normal for the investigating officer to contact HR in order to gain an understanding of their employer’s disciplinary procedures and guidelines.
In the case of Chhabra v West London Mental Health NHS Trust  UKSC 80 the Supreme Court ruled that HR could have an involvement in disciplinary cases as long as any such involvement only extended so far as offering advice on procedure and ensuring that all relevant matters had been addressed coherently.
However, in the recent case of Ramphal v Department for Transport UKEAT/0352/14, which involved this very issue, there was no mention of Chhabra. Mr Ramphal was undergoing investigation by his employer, the Department of Transport, due to a variety of unexplained expenses. Another employee, Mr Goodchild, was appointed as the case investigator and having never acted in disciplinary cases before he sought advice from HR in relation to the relevant procedures. Mr Goodchild’s initial report recommended a finding of misconduct and the issue of a final warning.
However, a few months down the line, following a lot of discussion between Mr Goodchild and HR, Mr Ramphal was dismissed on the basis of gross misconduct. Mr Goodchild’s originally less harsh report had been changed somewhat to portray Mr Ramphal in a much more critical light. Unsurprisingly, Mr Ramphal bought a case of unfair dismissal to the Employment Tribunal who found that the report was a true representation of Mr Goodchild’s own views. Mr Ramphal then appealed.
In the EAT attention was finally given to the case of Chhabra and Mr Ramphal’s appeal was allowed. It was held that in Chhabra an implied term had been established that said an investigating officer’s report must be based solely on their own investigations. They found the ‘disturbing’ change in Mr Goodchild’s report to be evidence of the fact that HR had got involved in discussions of Mr Ramphal’s culpability as opposed to just the procedure and guidelines, for which the law allows.
HR need to be mindful of their roles in disciplinaries, whilst guidance as to the procedure is plainly allowed, influencing the outcome, to the detriment of the employee, is not.
Rachel O’Connell, Solicitor & Director – Just Employment Ltd